Women, armed conflict, and international law

WOMEN, ARMED CONFLICT AND INTERNATIONAL LAW

Judith G. Gardam Michelle J. Jarvis

Kluwer Law International

WOMEN, ARMED CONFLICT AND INTERNATIONAL LAW

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WOMEN, ARMED CONFLICT AND INTERNATIONAL LAW by

Judith G. Gardam University ofAdelaide School of Law and

Michelle J. Jarvis Associate Legal Officer, International Criminal Tribunal for the Former Yugoslavia

Kluwer Law International The Hague / London / Boston

A C.I.P. Catalogue record for this book is available from the Library of Congress

ISBN 90-411-1640-0

Published by Kluwer Law International, P.O. Box 85889, 2508 CN The Hague, The Netherlands. Sold and distributed in North, Central and South America by Kluwer Law International, 101 Philip Drive, Norwell, MA 02061, U.S.A. kluwerlaw @ wkap. com In all other countries, sold and distributed by Kluwer Law International, Distribution Centre, P.O. Box 322, 3300 AH Dordrecht, The Netherlands.

Printed on acid-free paper

The views expressed herein are those of the authors and do not necessarily reflect the views of the United Nations. All Rights Reserved © 2001 Kluwer Law International Kluwer Law International incorporates the publishing programmes of Graham & Trotman Ltd, Kluwer Law and Taxation Publishers, and Martinus Nijhoff Publishers. No part of the material protected by this copyright notice may be reproduced or utilized in any form or by any means, electronic or mechanical, including photocopying, recording or by any information storage and retrieval system, without written permission from the copyright owner. Printed in the Netherlands.

To my

JGG To my mother Jan

MJJ

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Table of Contents ACKNOWLEDGMENTS

xi

FOREWORD CHAPTER 1

1. 2.

3.

THE IMPACT OF ARMED CONFLICT ON WOMEN

Introduction The Distinctive Experiences of Women Affected by Armed Conflict a. The Deliberate Killing of Civilian Women b. "Collateral Damage" and Women c. Violence against Women d. Displaced and Refugee Women e. Women in Detention f. Reinforced Gender Stereotypes g. Loss of Family Members h. Loss of Social Position i. Economic Effects of Armed Conflict j . Access to Essential Supplies and Services (i) Women's health (ii) Access to emergency relief k. Women Combatants Conclusion

CHAPTER 3

1. 2. 3.

WOMEN, ARMED CONFLICT AND INTERNATIONAL LAW

Introduction Why the Need for a Study of Women and IHL?

CHAPTER 2

1. 2.

xiii

INTERNATIONAL HUMANITARIAN LAW, WOMEN AND ARMED CONFLICT

Introduction Women and IHL - Early Developments Modern IHL and Women a. Boundaries of IHL b. Equal Treatment c. Special Protection for Women (i) Separate quarters and conveniences for women prisoners of war and internees (ii) Protection against sexual assault (in)Pregnant women (expectant mothers) and maternity cases d. The Maintenance and Restoration of Family Ties e. General Protection of the Civilian Population against the Effects of Hostilities (i) International armed conflicts (ii) Non-international armed conflicts £ Regulation of Weapons a. War Crimes Vll

1

1 4 19

19 21 21 23 25 30 33 35 37 38 40 42 43 47 48 51 53

53 56 58 58 61 62 63 64 65 68 68 68 71 71 72

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Table of Contents

(i) War crimes and international armed conflicts (ii) War crimes and non-international armed conflicts h. Crimes against Humanity and Genocide (i) Crimes against Humanity (ii) The Genocide Convention i. Rules and Procedures for Prosecuting International Crimes Committed during Armed Conflict j . Compensation for Victims of Armed Conflict CHAPTER 4

1. 2.

3. 4. 5. 6. 7. 8.

CHAPTER 5

1. 2. 3. 4.

5.

6.

A GENDER VIEW OF THE SHAPING OF IHL

Introduction The Woman of IHL a. The Special Provisions and the Norm of IHL b. The General Provisions and the Norm of IHL c. The Hierarchy of the Rules The Woman of IHL and the Reality of Armed Conflict for Women The Ideal of Woman as the Basis for IHL The Influence of the Military The Field of Application of IHL Interpretation and Development of IHL Conclusion UN DEVELOPMENTS CONCERNING WOMEN AND ARMED CONFLICT

Introduction Early Approaches: The Commission on the Status of Women 1968-1974 1974-1990: The Topic of Women and Armed Conflict Disappears from the Agenda The 1990s: Focus on Sexual Violence a. The United Nations Compensation Commission b. The "Comfort Women" c. The Campaign to Eradicate Violence Against Women d. Rape in Armed Conflict as a Threat to International Peace and Security (i) The former Yugoslavia (ii) Rwanda e. The UN Special Rapporteurs on Thematic Issues Related to Sexual Violence during Armed Conflict The Beijing Conference on Women and Subsequent Developments: A Broader Approach to the Impact of Armed Conflict on Women a. The Beijing Platform for Action b. The Commission on the Status of Women c. The Special Rapporteurs d. TheUNHCR e. The Security Council and the Secretary-General f. The Beijing Review A Comparison of Approaches a. The Impact of Armed Conflict on Women b. Causes of Vulnerability during Armed Conflict c. Constructions of Sexual Violence During Armed Conflict d. Hierarchy of Concern

73 76 78 78 81 83 87 93

93 95 95 97 99 101 107 112 122 128 134 135

135 137 143 144 144 144 146 148 148 151 160 162 162 165 166 168 168 169 170 170 172 172 173

Table of Contents

e. A Compartmentalised Existence f. An Evolving Woman CHAPTER 6

1. 2. 3.

4.

173 175 177

Introduction 177 Women, Discrimination and Redress 180 Prosecuting Crimes against Women 181 a. Gender and What Constitutes a Crime 182 188 (i) Sexual violence as torture (ii) Sexual violence as genocide 190 (Hi) Sexual violence as a crime against humanity 197 (iv) Sexual violence as a war crime: Grave breaches of the 1949 Geneva Conventions, and violations ofthe laws and customs of war 201 204 (v) Other gender issues b. Gender and the Decision to Prosecute at the International Level 204 204 (i) Nuremberg and Tokyo (ii) The Security Council: the ICTYand the ICTR 208 (Hi) The ICC and the decision to prosecute 219 c. Gender and the Conduct of Prosecutions at the International Level 221 d. Prosecutions: An Assessment 227 Compensation 230 a. World War II and Compensation for Women 230 b. The United Nations Compensation Commission 233 c. Compensation, the ICTY and the ICTR 244 d. Compensation and the ICC 246 e. Compensation: An Assessment 247

CHAPTER 7

1. 2.

INTERNATIONAL REDRESS

ix

THE WAY FORWARD

The Utopian Vision: The Integration of IHL and Human Rights The Pragmatic Vision a. Legal Instruments b. Reinterpretation of IHL c. Improved Dissemination d. The Inclusion of Women and the Acknowledgment of Gender in DecisionMaking e. A Centre of Expertise on Gender Issues and Armed Conflict f ICRC

251

254 256 256 257 258 259 262 262

A FINAL WORD

263

BIBLIOGRAPHY

265

INDEX

285

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Acknowledgments We received the most generous support and helpful advice from many friends and colleagues in the preparation of this work, in particular Adrian Bradbrook, Hilary Charlesworth, Christine Chinkin, Margaret Davies, Tina Dolgopol, Kaz Eaton, Martin Friedland, Karen Knop, Ngaire Naffine, Rosemary Owens, Valerie Oosterveld, and John Williams. There are many people from many different organisations who also have been of great assistance to us. We would like to thank in particular Hans Peter Gasser, Daniel Helle, and Fred Boll from the ICRC, who provided us with information on many aspects of the organisation's work in relation to women and armed conflict. Jane Connors, of the UN Division for the Advancement of Women, Anne Gallagher of the Human Rights Center, and Deborah Chatsis of the Canadian Permanent Mission to the United Nations, were just some of the women from organisations and governments who willingly gave their time and expertise in answering our various queries. We are very grateful for the excellent research assistance provided by Andreas Schloenhardt, and to Abigail Loregnard-Kasmally, Helen Brady and Heather Northcott who assisted with obtaining various UN documents. The assistance of the Australian Research Council in the preparation of this work is acknowledged. Our thanks also go to both the University of Toronto Law School human rights fellowship programme, and Notre Dame Law School human rights fellowship programme, whose financial assistance enabled Michelle to spend time at the International Criminal Tribunal for the Former Yugoslavia during the early phases of this work.

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Foreword International human rights law, international humanitarian law and international refugee law have sought to provide a comprehensive framework to address the harms experienced by both men and women in war. However, discriminatory interpretation and application of these three strands of international law, as well as the failure to recognize women's singular experience of armed conflict, have meant that this framework has not provided the protection and response that women have required. In particular, gender-based harms perpetrated against women, including sexual assault during conflict, have been viewed as less serious transgressions that their non-gender-based equivalents. The last decade, and particularly the years since the Fourth World Conference on Women held in Beijing in 1995, have witnessed important developments in the treatment of harms experienced by women in armed conflict. The Statutes of the Tribunals created to address crimes committed in the former Yugoslavia and Rwanda explicitly incorporate rape as a crime against humanity. The Statute of the International Tribunal for Rwanda expressly includes rape, enforced prostitution and any form of indecent assault as a violation of article 3 common to the Geneva Conventions and of Additional Protocol II. The Statutes and the Rules of Procedure and Evidence of the Tribunals provide for a range of protective measures for witnesses testifying in court, while the Rules of Procedure for the Yugoslav Tribunal provide for a Victims and Witnesses Unit to recommend protective measures for victims and witnesses and to provide counselling and support. Both Tribunals have issued indictments relating to sexual violence and defendants found guilty of such violence have been convicted of crimes against humanity, including as a result of rape, enslavement and torture; violation of the laws or customs of war, including as a result of rape, torture and outrages upon personal dignity; and genocide, through rape and sexual violence committed with the specific intent of destroying in whole or in part a particular group. The Statutes of the Tribunals have been built on by the Rome Statute of the International Criminal Court whose jurisdiction will include genocide, crimes against humanity, war crimes and crimes of aggression. Definitions of these crimes take gender concerns into account, and the Statute makes provision for the application of gender-sensitive justice by providing that in the selection of judges, States parties shall take into account the need for a fair representation of female and male judges and the inclusion of judges with legal expertise on specific issues, including violence against women and children. The Statute also provides for the establishment of a Victims and Witnesses Unit, which is mandated

xm

xiv

Foreword

to include staff with expertise in trauma, including trauma related to crimes of sexual violence. These developments have gone far to reverse the traditional lack of response to the experience of women in armed conflict. But much more remains to be done. In particular, while recognizing and condemning sexual violence against women in armed conflict, we must broaden our approach so as to take account of other aspects of women's experience in conflict, an experience which is a product of their unequal status in society and their sex. And it is now evident that the international community is moving towards a broader approach. On 8 March 2000, International Women's Day, the United Nations Security Council issued a statement recognizing that peace is inextricably linked to equality between women and men, and affirming that the equal access and full participation of women in power structures and their full involvement in all efforts for the prevention and resolution of conflicts are essential for the maintenance and promotion of peace and security. The Security Council stressed that if women were to play an equal part in security and maintaining peace they must be represented politically and economically at all levels of decision-making, at the pre-conflict stage, during hostilities and at the point of peace-keeping, peace-building, reconciliation and reconstruction. On 24 and 25 October 2000, the Security Council held an open discussion on women, peace and security. It adopted a far-reaching resolution on the topic (1325), which invited the Secretary-General to carry out a study on the impact of armed conflict on women and girls, the role of women in peace-building, and the gender dimensions of peace processes and conflict resolution. "Women, Armed Conflict and International Law" provides a comprehensive description of the impact on women of modern armed conflict and compares that experience with the current legal framework for protection. While the developments of the last decade are acknowledged and welcomed, the legal framework, based as it is on a notion of formal equality which pays little account to the differential impact of armed conflict on women and men, is judged inadequate. The legal framework is, however, ripe for reinterpretation, wide dissemination and full and faithful application. The Secretary-General's study on the impact of armed conflict on women and girls, which is now under preparation, provides the United Nations system with an opportunity for critical analysis of the relevant law and to make creative recommendations for further action. The strength of "Women, Armed Conflict and International Law" is its focus on discrimination and women's inequality as exacerbating women's adverse experience of armed conflict. I am confident that readers of this monograph will emerge with a greater understanding of this experience, and a critical view of the

Foreword

legal standards which exist to provide protection and redress for women whose already lesser status is affected by armed conflict.

Ms. Angela E.V. King United Nations Assistant Secretary-General Special Adviser on Gender Issues and Advancement of Women

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CHAPTER 1 WOMEN, ARMED CONFLICT AND INTERNATIONAL LAW

1.

Introduction

This work takes the experience of women of armed conflict, matches it with the law, and investigates reasons for the silence of the latter in relation to these events for women.1 We do not offer a traditional doctrinal study of either International Humanitarian Law (IHL) and women2 nor of the broader topic of international law, armed conflict and women.3 Neither do we attempt a monolithic explanation of what is wrong with the law or why this is so.^ During the period 1989-1997, there were an estimated 103 armed conflicts taking place in 69 locations in the world. 5 Moreover, at any given time,

There are many methods adopted by feminists to investigate law. The process is encapsulated by Ngaire Naffine's idea of an "archaeological dig", revealing layer after layer of the complex story of the much vaunted objectivity and neutrality of the law. See N Naffine, Law and the Sexes (1990) 2. For a discussion of feminist method in the context of international law, see H Charlesworth, "Feminist Methods in International Law", (1999) 93 AJIL 379; and see generally N Lacey, "Legislation Against Sex Discrimination: Questions from a Feminist Perspective", (1987) 14 JL & SocAW. For a traditional approach to women and IHL, see M Tabory, "The Status of Women in Humanitarian Law", in Y Dinstein ed, International Law at a Time of Perplexity (1989) 941, and F Krill, "The Protection of Women in International Humanitarian Law", (1985) 249 IRRC337. For a general examination of IHL, see, for example, L Green, The Contemporary Law of Armed Conflict (2nd ed, 1998), and D Fleck ed, The Handbook of Humanitarian Law in Armed Conflicts (1995). Human rights norms are of some relevance in the context of armed conflict and there is growing convergence between the two regimes. See, for example, T Meron, "The Humanisation of Humanitarian Law" (2000) 94 AJIL 239. In the context of women, see J Gardam, "Women, Human Rights and International Humanitarian Law", (1998) 324IRRC421; Charlesworth, supra note 1, at 385; and Y Khushalani, Dignity and Honour of Women as Basic and Fundamental Human Rights (1982). See also the further discussion of this issue infra Chapter 4 notes 28 ff and accompanying text. As J Ann Tickner writes, feminists are not pre-occupied primarily with arriving at a single universal truth, but rather seek to engage in a dialogue which includes the voices of those rarely heard in the debate, see J Ann Tickner, "You Just Don't Understand: Troubled Engagements Between Feminists and IR Theorists", (1997) 41 International Studies Quarterly 611 at 629. See M Sollenberg ed, States in Armed Conflict 1997 (1998) 7, and Appendix 1 at 13. For the definition of armed conflicts included in these statistics, see Appendix 2 at 19. See also Security Council 1998: Elusive Quest for International Peace and Security, UN Doc S/6626 (1999) (for an overview of the situation in relation to armed conflicts in 1998).

1

International Humanitarian Law, Women and Armed Conflict

many countries are in the process of recovering from armed conflict.^ The civilian casualties from armed conflict today are catastrophic.7 The United Nations Security Council in 1999 noted: "that civilians account for the vast majority of casualties in armed conflicts and are increasingly targeted by combatants and armed elements."8 It follows that millions of women throughout the world, at one time or another, are affected by armed conflict. The magnitude of this humanitarian crisis cannot be over-emphasised. We commence our task with an examination of what happens to women in armed conflict. This is an ambitious undertaking, and the picture we present of the reality of warfare for women is inevitably partial and fragmented. We do not attempt to explain in any detailed way why these events occur, except to the extent necessary to explain the shortcomings of the law. Overall, we conclude that armed conflict exacerbates the global inequalities experienced by women. Moreover, armed conflict creates new and different types of discrimination against women. Against the background of the experience of women of armed conflict, we assess the response of international law to women and armed conflict. Our major focus is the regime of IHL that purports to address, without discrimination, the humanitarian problems arising from armed conflict. The humanitarian objective of IHL is reflected in the definition of IHL adopted by the International Committee of the Red Cross (ICRC), the Swiss based association with special responsibility for IHL,9 which refers to the:

For further information, see the annual editions of Sollenberg, ibid; and see also Security Council 1998: Elusive Quest for International Peace and Security, UN Doc S/6626 (1999). See for example, Impact ofArmed Conflict on Children: Report submitted pursuant to the resolution adopted by the General Assembly AJRES/48/157 to the Fifty First Session of the United Nations General Assembly, Ms Graca Machel, UN Doc A/51/306 (26 Aug 1996) [hereinafter Machel 1996 Report] para 24 (stating that civilians constitute 90% of the casualties from modern armed conflict); and Oxfam International, Improving the UN's Response to Complex Emergencies (1997) (stating that "four out of every five casualties of violent conflict are civilians, most of them women and children"). See also Statement by the President of the Security Council requesting the Secretary General to report to the Council on ways to improve the physical and legal protection of civilians in situations of armed conflict, UN Doc S/PRST/1999/6 (1999); and Sollenberg, supra note 5. UN Doc S/RES/1265 (17 Sep 1999). For the role of the ICRC, see the Statutes of the International Committee of the Red Cross of 24th ]une 1998, reprinted in (1998) 324 IRRC 537. Over the years, the definition and scope of what is today increasingly referred to as IHL has varied. IHL is a relatively new term to describe this area of international law. During the period when war was accepted as a legitimate activity of States, the relevant rules of international law that controlled its conduct were referred to as the law of war. When, however, war was outlawed by the United Nations Charter, the law of war became known as the law of armed conflict. The term IHL has been widely adopted primarily at the instigation of the ICRC.

Women, Armed Conflict and International Law

international rules established by treaties or custom, which are specifically intended to solve humanitarian problems directly arising from international or non-international armed conflicts and which, for humanitarian reasons, limit the right of parties to a conflict to use the methods, and means of warfare of their choice, or protect persons and property that are, or may be, affected by conflict.10 IHL attempts to deal with the needs of women by so called "special provisions". IHL, therefore, contains general provisions protecting equally all combatants and civilians, and a number of specific provisions affording women particular protection during armed conflict.11 We scrutinise these provisions and investigate the extent to which the regime of IHL performs its humanitarian task in relation to women. Although the focus of this work is IHL, a field traditionally dominated by the ICRC and the military establishment of States, 12 the work of the United Nations (UN) and its specialised agencies is increasingly supplementing the protections offered to women by IHL, and influencing its future development. Therefore, we also critically consider the work of these bodies that focus on women and armed conflict, and the contribution they have made to addressing the distinctive impact of armed conflict upon women. At the international level redress for all victims 13 of armed conflict is inadequate. Women, however, have distinctive needs in the context of redress. The discrimination that women experience in society generally, is a contributing factor to many of these needs. Moreover, women encounter particular difficulties in obtaining redress in situations where they do not enjoy equality of opportunity. We focus in this work on two particular aspects of redress, namely the prosecution of perpetrators, and the provision of compensation to victims. Certain violations of IHL are designated as international crimes. Moreover, crimes against humanity and genocide can be constituted by events that occur

10 11 12 13

J Pictet eta!, eds, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (1987) xxvii. For a discussion of these provisions of IHL, see infra Chapter 3. There is a complex, symbiotic relationship between the culture of the military and that of the ICRC, see M Ignatieff, The Warrior's Honor (1997) 122 (for a discussion of this relationship). There are problems associated with the term "victim". In particular, there is the view that it disempowers, and that the term "survivor" is more appropriate. See for example, the discussion in, Promoting the Right to Reparation for Survivors of Torture: What Role for a Permanent International Criminal Court (1997) 6, citing R Mawby & S Walklate, Critical Victimology (1994) 12. However, the use of the term "victim" is more accurate in the context of armed conflict where either death or injury may be the outcome.

International Humanitarian Law, Women and Armed Conflict

during armed conflict. ^ We examine the extent to which international criminal law applicable to armed conflict reflects the experiences of women, in not only the determination of what is criminal, but also what offences warrant prosecution at the international level.

2.

Why the Need for a Study of Women and IHL?

A critical examination of IHL and women is long overdue. The protections offered by its provisions are inadequate in relation to all categories of persons affected by armed conflict. To some extent the consequences of these shortcomings have been examined, and reforms to the law proposed. There have been concerted efforts, particularly since the emergence of the human rights movement, to improve the treatment of civilians in armed conflict. 15 These efforts have met with some success. In 1977 the international community adopted the two Protocols to the 1949 Geneva Conventions, dealing respectively with international and non-international armed conflicts.16 The Protocols enjoy a wide membership. As at 30 July 2000, Protocol I has 156 State Parties, and Protocol II has 149 State Parties. Protocol I makes significant progress in regulating the conduct of hostilities in order to provide increased protections for civilians.17 These latter provisions however, at the time were resisted vigorously by the military of several States, and remain controversial in some quarters.18 The adoption of the Convention on the Prohibition on the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, ^ is an example of what can be achieved if the international campaign is sufficiently well organised and focussed.

14

15 16

17 18 19

For a discussion of the relationship between IHL and crimes against humanity, see W Fenrick, "Should Crimes Against Humanity Replace War Crimes?", (1999) 37 ColJTL 767. The advantage of crimes against humanity is that they are not constrained by die classification problems of IHL, and the essence of the offence is the activity, not whether it takes place in an international or noninternational armed conflict. See generally, ] Gardam, Non-Combatant Immunity as a Norm of International Humanitarian Law (1993). Protocol Additional to the Geneva Conventions of 12 Aug 1949, and relating to the Protection of Victims ofInternational Armed Conflicts, adopted in 1977 (Protocol I), (1977) 16 ILM 1391 [hereinafter Protocol I] and Protocol Additional to the Geneva Conventions of 12 Aug 1949, and relating to the Protection of Victims of non-international Armed Conflicts, adopted in 1977 (Protocol II), (1977) 16 ILM 1442 [hereinafter Protocol II]. See Gardam, supra note 15, at 111-123. See generally, T Meron, "The Time has Come for the US to Ratify Geneva Protocol I", (1994) 88 AJIL 427, 678. Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction 1997(the 'Ottawa Convention, (1997) 36 ILM 1507).

Women, Armed Conflict and International Law

In the context of combatants, there are detailed rules protecting combatants when wounded, sick, or prisoners of war.20 It is a difficult task, however, to persuade the military to accept restrictions on the use of any weapon with a perceived military advantage in order to protect combatants (or indeed civilians). An examination of the history of attempts to regulate weapons causing unnecessary suffering or superfluous injury illustrates this point. 21 In recent years, efforts have been focussed on improving the protections offered to children in armed conflict. The primary focus of the international community in relation to children has been on raising the minimum age of participation in hostilities. In January 2000, a draft protocol to the Convention on the Rights of the Child regarding the use of child soldiers, was adopted.22 A study of the impact of armed conflict on children, commissioned by the General Assembly, has also addressed the question of child soldiers as well as some broader issues.23 In addition, a Special Representative to the Secretary-General on Children and Armed Conflict has been appointed.24 Despite these efforts, IHL has been largely impervious to any fundamental critique of the underlying causes for its inadequacies.2^ Many of the explanations for the limitations of IHL are shared by international law generally, for

20

21

22

23 24

25

See Geneva Convention for the amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 Aug 1949 (75 UNTS 31) [hereinafter the First Geneva Convention}; Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 Aug 1949 (75 UNTS 85) [hereinafter the Second Geneva Convention] and Geneva Convention relative to the Protection of Prisoners of War, 12 Aug 1949 (75 UNTS 135) [hereinafter the Third Geneva Convention]. See for example, L Doswald-Beck, "Obstacles to Regulating New Weaponry: Battlefield Laser Weapons", in H Fox & M Meyer eds, Effecting Compliance, Armed Conflict and the New Law (1993) 107; and C Jochnick & R Normand, "The Legitimation of Violence: A Critical History of the Laws of War", (1994) 35 HarvIntLJ 49. See Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflicts, as adopted by consensus on 21 Jan 2000, by the UN inter-sessional open-ended Working Group. Machel 1996 Report, supra note 7. See UN Doc A/RES/51/77 (1996) (recommending the appointment of a Special Representative to study the impact of armed conflict on children). On 19 August 1997 the Secretary General appointed Olara Otunna to this position. See Protection of Children affected by Armed Conflict, UN Doc A/53/482 (12 Oct 1998); Protection of Children affected by Armed Conflict, UN Doc A/54/430 (1 Oct 1999); and Additional Report of the Special Representative of the Secretary-General for Children and Armed Conflict, Mr Olara Otunnu, Submitted in Accordance with General Assembly Resolution 53/128, UN Doc E/CN.4/2000/71 (9 Feb 2000). See, however, Jochnick & Normand, supra note 21. For critical perspectives on international law generally, see for example, M Koskenniemi, From Apology to Utopia (1989); P Allott, Eunomia (1990); and H Charlesworth & C Chinkin, The Boundaries of International Law (2000).

International Humanitarian Law, Women and Armed Conflict

example, its European provenance, and its emphasis on preserving the sovereignty of States within their territorial boundaries. The latter phenomenon has had a particular impact on IHL, as the majority of conflicts in the world today are internal in nature21^ and there are few applicable provisions.27 IHL, however, unlike other areas of international law, has a distinct tradition in which military considerations have been a dominating and restricting influence on its development and content. The historical indifference to women, and their particular experiences of armed conflict, has been marked. There is, however, increasing recognition of the burden borne by women in armed conflict.28 In many ways, whether as combatants or civilians, women share many of the same difficulties as men. They are targeted with the same weapons, share the dislocation attendant on armed conflict, and the loss of shelter, shortage of medical and food supplies that it entails. There is now overwhelming evidence, however, that women experience armed conflict in a different way to men. This distinctive experience, although its effects differ widely across cultures depending upon the position of women in particular societies, is related to the vulnerability of women when armed conflict breaks out. This vulnerability of women is evident, for example, in the appalling statistics of violence, including sexual violence, against women during times of

26

27

28

See ] Balint, "An Empirical Study of Conflict, Conflict Victimization, and Legal Redress", in C Joyner & M Bassiouni eds, Reining in Impunity for International Crimes and Serious Violations of Fundamental Human rights: Proceedings of the Siracusa Conference, 17-21 Sep 1998 (1998) 101 at 107 (stating that since in the period from the end of the Second World War until 1996, there have been at least 220 non-international armed conflicts, that may have led to 86 million deaths). For a discussion of the nature of modern conflicts and they challenges they pose to IHL, see Ignatieff, supra note 12, at 125 ff. See Green supra note 2, at 303-317 (for a discussion of IHL and non-international armed conflicts). In more recent times there have been developments in the legal regime applicable to international armed conflicts and IHL, particularly in the context of war crimes. See for example, T Meron, "International Criminalization of Internal Atrocities", (1995) 89 AJIL 554. See for example, Violence Against Women, statement by the ICRC to Commission on Human Rights 22 Mar-30 Apr 1999, 55th Session Agenda Item 12 (a); Report of the Special Rapporteur on Violence Against Women, Ms Radhika Coomaraswamy, UN Doc E/CN.4/1998/54 (1998) [hereinafter Coomaraswamy 1998 Report]; statement of Renee Guisan, ICRC delegate to the Fourth World Conference on Women, Beijing, Sep 1995, ICRC, ; Fourth World Conference on Women, Action for Equality Development and Peace, Beijing Declaration and Platform for Action, UN Doc A/Conf. 177/20 (1995) [hereinafter Beijing Platform for Action] para 136.

Women, Armed Conflict and International Law

armed unrest.2^ The term "violence against women" is defined in the Beijing Platform for Action as "any act of gender-based violence that results in, or is likely to result in, physical, sexual, or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life ..."3° Violence against women in armed conflict is a manifestation of the universal, unequal, power relations between men and women. Such violence crosses all cultural boundaries and has been consistently unreported and unrecorded, although it has resulted in death and suffering for countless women over the years.^1 This violence, moreover, takes on new dimensions and distinctive patterns in armed conflict. For example, in the conflicts in the former Yugoslavia and Rwanda, mass rape, and many other inhumane acts of sexual violence, were used as a means of warfare to terrorise and humiliate the civilian population, and to further the goal of genocide and ethnic cleansing.^2 These appalling practices, however, should not obscure the impact of sexual violence on individual women. Women are subjected to mistreatment by all participants in armed conflict; by "friendly" and "enemy" forces, by civilian and military personnel, including United Nations peacekeeping forces, who are entrusted with the task of protecting women. The physical and psychological consequences of this widespread abuse in armed conflict has devastating consequences, not only for the women themselves, but all the members of the societies of which they are a part. Undoubtedly, this is one of the most widespread and pervasive effects of armed conflict on women in all cultures and in all conflicts. Violence against women, however, is only one way in which the vulnerability of women manifests itself in armed conflict. The overall experience of

29

30 31

32

See for example, Americas Watch and Women's Rights Project, Untold Terror: Violence Against Women in Peru's Armed Conflict (1992); Amnesty International, Bosnia-Herzegovina: Rape and Sexual Abuse by Armed Forces (1993); Human Rights Watch (Helsinki Watch), War Crimes in Bosnia-Herzegovina, (1993) 18, 163-86; Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780, UN Doc S/1994/674 (1994) (considering the issue of rape and sexual assault at paras 58-60 and 232-253); African Rights, Rwanda: Death, Despair and Defiance (rev ed, 1995); Human Rights Watch, Global Report on Women's Human Rights (1995) 100-138 (in relation to sexual assault of refugees and displaced women); Human Rights Watch, Shattered Lives: Sexual Violence During the Rwandan Genocide and its Aftermath (1996) and see the further sources cited infra Chapter 2 notes 37 ff. The Beijing Platform for Action, supra note 28, at para 113. For a graphic account of rape in warfare over the centuries see, S Brownmiller, Against Our Will: Men, Women and Rape (1975) 3-113. See also G Best, "Restraints on War by Land before 1945", in M Howard ed, Restraints on War: Studies in the Limitation of Armed Conflict (1979) 17, 26. See the discussion of sexual violence as crimes against humanity and genocide infra Chapter 6.

International Humanitarian Law, Women and Armed Conflict

women affected by armed conflict is a product of their unequal status generally. Nowhere are women full participants in society.33 Women are disadvantaged in access to education, health care, and are considerably less mobile because of their traditional role in caring for others.34 Seventy percent of the world's population living in poverty are women.35 Their work remains grossly unpaid, unrecognised, and undervalued.^ Women the world over are disadvantaged in terms of education, constituting about two thirds of the illiterate population of the world3^ and have more limited access than men to income, property, and credit. 38 In addition, political opportunities for women are severely limited. 39 They are generally denied access to power structures, and participation in decisionmaking at all levels, and this exclusion carries through into the context of armed conflict.1^0 Therefore, women are unable to draw attention to the particular difficulties they experience in conflict situations and, moreover, are powerless to recommend any preventative action in response. The low status of women in society is reflected in their treatment by the law, in property rights, rights of inheritance, laws related to marriage and divorce, and rights to acquire nationality or property or seek employment. Given this lack of full participation in society, and their gender and biological roles, it is inevitable that armed conflict impacts extremely harshly on women. Because of their reproductive roles, they are particularly affected by shortages of food, medicine, and medical assistance. Women, moreover, lack the resources, education or skills to

33

34 35

36 37 38 39 40

See generally, United Nations Development Programme (UNDP), Human Development Report (1995). See also for example, L Bonnerjea, Shaming the World: The Needs of Women Refugees, Change (1995) 9. See ICRC, Women and War (1995) 7. The feminisation of poverty was a key area of concern at the Beijing Conference, Beijing Platform for Action, supra note 28, at 49-59; see also African Platform for Action Adopted by the Fifth Regional Conference on Women held at Dakar from 16 to 23 November 1994, UN Doc E/CN.6/1995/5/Add.2 (29 Dec 1994) para 25; Second Review and Appraisal of the Implementation of the Nairobi Forward-Looking Strategies for the Advancement of Women, Report of the Secretary General, UN Doc E/CN.6/1995/3/Add.l (24 Feb 1995) para 92. See UNDP note 33, at 97, (estimating women's invisible annual contribution to the global economy at eleven trillion dollars). ] Seager, The State of Women in the World Atlas (2nd ed, 1997) 121. Ibid at 120. See UNDP, *«/>« note 33, at 41-42. See for example, in the context of Palestinian women, H Charlesworth, "International Human Rights Law: Prospects and Problems for Palestinian Women", in S Bowen ed, Human Rights: Self Determination and Political Change in the Occupied Palestinian Territories (1997) 79, 81-85; see also "Stop Press: Emergency Appeal, Women in Somalia", 3/4 Changing the World 8 (1992); and T Looby, "Women in Bougainville", (1992) 42 Refractory Girl 66-67.

Women, Armed Conflict and International Law

deal with the conditions that result from armed conflict, and in the absence of the male of the family, they frequently experience great difficulty in supporting themselves and their families. 41 Despite the efforts to improve the protection of general categories of victims and children, and increasing recognition that armed conflict has this differing impact on women, there has been, to date, no serious attempt to address in any comprehensive way the deficiencies of IHL from their perspective. They are assumed to be adequately covered by the on-going strategies to improve the protections for combatants, civilians and children. Proponents of IHL argue that not only does the system require that its general rules be applied without discrimination,42 but that there are special provisions dealing with the particular needs of women. The requirement of non-discrimination in the application of the provisions relating to all civilians and combatants disguises the reality of a regime that reflects a male perspective of armed conflict. To some extent, IHL does recognise that women are peculiarly vulnerable during times of armed conflict. It does so through the so-called regime of "special" protection, which provides safeguards for women when pregnant, and as mothers, maternity cases, and sexual beings.^3 Specific provisions for women are a common phenomenon in both municipal and international law. It is one way of recognising the particular situation of women. Such a strategy, however, not only reinforces stereotypes of women, but fails to challenge the underlying systemic discrimination that women experience in all societies. Moreover, this approach can operate in other ways to the disadvantage of women. The difficulties are well illustrated by the regime governing women and human rights. The ready response to claims that not enough is being done in relation to the human rights of women is that there is a special treaty devoted to these concerns; the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW).44 There is no recognition, however, that there are distinctive problems with CEDAW that are not associated with more mainstream documents.^5

41 42 43 44 45

See Human Rights Watch, supra note 29, at 23. See the discussion of the relevant conventional provisions infra Chapter 3 notes 43 ff and accompanying text. See infra Chapter 3 for a detailed discussion of this regime and see also, Tabory supra note 2; and Krill, supra note 2. Convention on the Elimination of all Forms of Discrimination Against Women, 18 Dec 1979 (1325 UNTS 378). See for example, B Clark, "The Vienna Reservations Regime and the Convention on Discrimination Against Women", (1985) 85 AJIL 281.

10

International Humanitarian Law, Women and Armed Conflict

A similar debate manifests itself in the context of IHL in allegations that women are already well provided for in that they receive protection over and above the general population. The ICRC, from time to time, has recognised that women need extra protections in armed conflict, but has not always argued the case in a way that avoids this impression of favourable treatment. For example, the ICRC delegate at the Diplomatic Conference that adopted Protocol I, stated: At the present time, opinions were divided regarding the special protection to be given to women in armed conflicts. Some people considered that the existing provisions of international law, and in particular those of the conventions and the instruments relating to human rights, were sufficient; others, like the ICRC, held that since the civilian population and especially women were becoming increasingly involved in present-day conflicts, it was necessary to give them greater protection in relation to that enjoyed by men placed in similar situations. " This appears an unsustainable argument and discriminatory on its face. Another approach, and one that more accurately reflects the true position, is that IHL is not of general application, its design reflects a certain male experience. Moreover, the special provisions in relation to women take the male perception of not only what it is to be a woman, but also what it is about women that warrants protection. In doing so, a picture of women is presented that is distorted and far from the reality of their lives. Therefore, what is overlooked in analyses of IHL is the impact of gender.47 Gender, in the sense of the social construction of differences between men and women, and what it is to be "feminine" and "masculine", is not a factor that has traditionally been regarded as relevant in discussions of IHL. Its impact is not restricted to women. To the extent that IHL regulates armed conflict, it does so

46 47

See Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva 1974-75, CDH/III/SR.44 para 57. "Gender" has been described as the "socially constructed roles of women and men ascribed to them on the basis of their sex, whereas the term "sex" refers to biological and physical characteristics. Gender roles depend on a particular socio-economic, political, and cultural context, and are affected by other factors, including age, race, class and ethnicity. Gender roles are learned, and vary widely within and between cultures." Implementation of the Outcome of The Fourth World Conference on Women., UN Doc A/51/322 (1996) paras 7-14. For a description of what is meant by the gendered nature of law, see M Davies, "Taking the Inside Out: Sex and Gender in the Legal Subject", in N Naffine & R Owens eds, Sexing the Subject of Law (1997) 25, 28-31; and for an argument that sex is also a product of culture, see Davies, ibid.

Women, Armed Conflict and International Law

11

from the perspective of a particular type of male: how this individual experiences armed conflict and his needs. The majority of male victims of armed conflict, be they combatants or civilians, would fail to recognise themselves in that male norm.48 IHL, in common with law generally, is a thoroughly gendered system. It accepts the social construction of the masculine and feminine as a given. Thus, certain characteristics of men and women are assumed and serve as a basis on which to construct the regime. Built into the rules is the preference historically accorded to the characteristics that represent the masculine. The foundations of IHL are "structures of systemic inequality and discrimination against women."49 IHL both perpetuates and further constructs a particular vision of men and women. An example of this process is the concept of "honour" in IHL. The honour of men and women is taken as natural. Its characteristics for men are: bravery, fortitude, self-reliance; for women: chastity, modesty, frailty and dependence. The rules of IHL are then fashioned on these assumed characteristics. Gender is a useful vehicle for the analysis of law. What it does is demonstrate how the law creates and reinforces a certain type of gender differentiation. Examining IHL from the perspective of gender, and how it constructs the category "woman", avoids the trap of assuming a pre-existing category of woman. Women who do not fit the model are not automatically rendered invisible in the process. Merely to identify the characteristics of the gender man and woman in the rules of IHL is thus not a particularly controversial undertaking. On the other hand, what conclusions are drawn from this process, and how they are applied in formulating changes to the law, is fraught with both theoretical and practical difficulties. It is when we reach the stage of denouncing the law as not reflecting the needs and aspirations of women and put forward proposals for reform, that our project becomes vulnerable to the charge of erasing differences between women by creating a universal category of woman.50 Any critique of the law must not assume a universal experience of warfare by women. To talk in terms of women's experience of warfare, as the basis for a

48

49

50

See J Gardam, "An Alien's Encounter with the Law of Armed Conflict", in N Naffine & R Owens eds, Sexing the Subject ofLaw (1977) 233; and J Tickner, Gender in International Relations: Feminist Perspectives on Achieving Global Security (1992) 6-7, 40. See Report of the Expert Group Meeting, "Promoting Women's Enjoyment of their Economic and Social Rights", Abo/Turku, FinUnd, UN Doc EGM/WESR/1997/Report (Dec 1997) Preface (making this argument in the context of the human rights of women generally). For a helpful explanation of the terms essentialism, biologism, naturalism and universalism, as used by feminist commentators, see E Grosz, "Conclusion: A Note on Essentialism and Difference", in S Gunew ed, Feminist Knowledge Critique and Construct (1990) 332 at 333-5.

12

International Humanitarian Law, Women and Armed Conflict

consideration of the inadequacies of the existing legal regime, recalls one of the major challenges posed to Western feminist scholarship in the area of human rights, that is, the enormous difficulties in postulating a common experience of all women across cultural boundaries.51 Perhaps the task of finding some aspects of a shared experience of women is somewhat easier in the area of armed conflict than it has proved to be in the area of human rights and international law generally. So, for example, although rape in warfare will impact differently on women depending on its cultural significance, it must surely be experienced by all women as a terrifying, violent, and painful event. The same is true for the physical and emotional effects of being subjected to direct or indiscriminate armed attacks; to starvation; to the loss of physical shelter; and to other hardships imposed by armed conflict. The question of difference between women is particularly problematic in international law. Although it must be confronted by commentators in the context of municipal law, international law lays claim to relevance to all peoples across all cultural divides. The challenge of formulating a category of "woman", however, cannot be permanently circumvented if concrete changes to the law are advocated. There are indications of change in the traditional lack of response to women and armed conflict. The majority of the developments have been in the context of enforcement of re-interpreted norms of IHL so as to deal with sexual violence against women. It was the conflict in the former Yugoslavia that galvanised the international community into action, and led to other developments in the law of sexual violence against women in armed conflict, most of which can be traced to the work of the two UN ad hoc war crimes tribunals: the International Criminal Tribunal for the Former Yugoslavia (ICTY)52 and the International Criminal Tribunal for Rwanda (ICTR).53 The focus on sexual violence in these disparate bodies contributed to the end of the invisibility of women and sexual violence, and led to important new developments in the interpretation of relevant IHL norms, particularly the recognition of rape as a grave breach of IHL.

51

52 53

See C Bulbeck, Re-Orienting Western Feminisms: Women's Diversity in a Postcolonial World (1998), C Mohanty, "Under Western Eyes: Feminist Scholarship and Colonial Discourses", in C Mohanty et al. eds, Third World Women and the Politics of Feminism (1991) 51; I Gunning, "Arrogant Perception, World Travelling and Multicultural Feminism: the Case of Female Genital Surgeries", (1991/92) 23 Colum HRLR 189; and K Engle, "Female Subjects of Public International Law: Human Rights and the Exotic Other Female", (1992) 26 NELR 1509. The ICTY was established in 1993 by the UN Security Council. See UN Doc S/RES/808 (Feb 1993); and S/RES/827 (May 1993). See the further discussion of the ICTY infra Chapter 6. The ICTR was established in 1994 by the UN Security Council. See UN Doc S/RES/955 (Nov 1994). See the further discussion of the ICTR infra Chapter 6.

Women, Armed Conflict and International Law

13

Moreover, both the Statute of the ICTY and the Statute of the ICTR, for the first time, recognise rape as a crime against humanity.54 In addition the Statute of the ICTR expressly designates rape, and some other forms of sexual violence, as violations of Common Article 3 to the 1949 Geneva Conventions, and Protocol 11.55 This criminalisation of activities in non-international armed conflicts is of great significance generally in IHL.56 In a continuation of this trend, the Rome Statute of the International Criminal Court, adopted in 1998, recognises rape and a range of other gender specific crimes as offences over which the Court will have jurisdiction.57 Although the precedential value of the ad hoc tribunals is limited both by their origin as Security Council measures and by their geographical scope, the normative effect of these initiatives is much more widespread. It remains to be seen whether the trend continues of taking sexual violence against women in armed conflict seriously. Much of the impetus for these trends can be traced to the women's human rights movement. In more recent years, the movement for recognition of the equal rights of women has been exerting its influence on human rights law, and to some effect.58 In 1979, for example, the international community adopted CEDAW.59 Moreover, an Optional Protocol to CEDAW was adopted by the UN General Assembly in 1999, and allows for individual and group complaints to the Committee on the Elimination of all Forms of Discrimination against Women.6° Governmental and non-governmental organisations have increasingly focused on

54

55 56 57

58

59 60

Art 5 Annex to the Secretary-General's Report on Aspects of Establishing an International Tribunalfor the Prosecution of Persons Responsible for Serious Violations of International Humanitarian law Committed in the Territory of the Former Yugoslavia (Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), UN Doc S/25704 (1993, as amended 13 May 1998), UN [hereinafter Statute of the ICTY]; and Art 3, Statute of the International Criminal Tribunalfor Rwanda, UN Doc S/RES/955 (8 Nov 1994), Annex, UN [hereinafter Statute of the ICTR]. Art 4 Statute of the ICTR. See Meron, note 27. Rome Statute of the International Criminal Court, UN Doc A/CONF. 183/9 (17 July 1998) [hereinafter Statute of the ICC]. The Statute was adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court on 17 July 1998. For an overview of the achievements of the last decade, see C Chinkin, "Feminist Interventions in International Law: Reflections on the Past and Strategies for the Future", (1997) 19 Adel LR 1 at 15-18. See supra note 44. See UN Doc A/RES/54/4 (15 Oct 1999). The text of the Optional Protocol to the Convention on the Elimination of all Forms of Discrimination against Women is annexed thereto.

14

International Humanitarian Law, Women and Armed Conflict

the issue of women's human rights. As a result, a wide range of studies, reports, and recommendations, on various aspects of women and human rights is available.1^1 The topic of women is firmly established on the international human rights agenda. It would be misleading, however, to represent human rights law as a satisfactory regime from the perspective of women. Commentators have convincingly demonstrated the limitations of the existing body of human rights law to adequately take account of the reality of women's experience of the world. 62 Nevertheless, the impact of this attention to the human rights of women has considerable implications for IHL. The problem of violence against women, and strategies to contain it, has been the focus of much of the work of human rights agencies concerned with women. This has led to a consideration of these activities in armed conflict, as so much of the violence against women occurs during such times. 63 Of particular significance is the Fourth World Conference on Women, held at Beijing in 1995, which recognised the seriousness of armed conflict and its impact on the lives of women. 64 The Beijing Declaration referred to the determination of the participating States to "ensure respect for international law, including humanitarian law, in order to protect women and girls in particular". 65 The Platform for Action identified women and armed conflict as one of the twelve critical areas of concern to be addressed by Member States, the international community and civil society.66 The process of identifying women's particular experiences and demonstrating the failure of the law to acknowledge them, thus is significantly more advanced in human rights bodies than in organisations focussing solely on armed

61

62

63

64

65 66

See, for example, Women's Human Rights Resources, University of Toronto (for a comprehensive listing of articles, documents etc on the human rights of women). See for example, C Bunch, "Women's Rights as Human Rights: Towards a Re-Vision of Human Rights", (1990) 12 HRQ486; H Charlesworth, "What are Women's Human Rights?", in R Cook ed, Human Rights of Women: National and International Perspectives (1994) 58. See for example, Coomaraswamy 1998 Report, supra note 28; see also para38 of the Vienna Declaration and Program ofAction, UN Doc A/Conf. 157/24 (13 Oct 1993) pt 1; Declaration on the Elimination of Violence Against Women, UN Doc A/48/104 (23 Feb 1994). Beijing Platform for Action, supra note 28. In June 2000 the General Assembly held a special five day session to review progress under the Beijing Platform for Action. See the further discussion of the review session infra Chapter 5 note 216 ff and accompanying text. Ibid, at para 33. Ibid, at Strategic Objective E, paras 131-49. See generally ] Gardam & M Jarvis, "Protecting Women in Armed Conflict: An Assessment of the Beijing Platform for Action", (2000) 32 Col HRLRWX.

Women, Armed Conflict and International Law

15

conflict. Of course action plans, recommendations, and proposals need to be implemented to be of lasting significance. Progress is slow and at times disheartening.67 There are, however, positive signs. An acknowledgment of the seriousness of sexual violence against women in armed conflict can be discerned in the work of the ICRC. The protection of women victims of conflict has always been part of the mandate of the ICRC. Traditionally, however, women have been subsumed under the general category of civilians, or as a separate category; "women and children". This has occurred despite the fact that the needs of these various categories of victims are not identical. Over the years, the ICRC has made some attempts to mitigate the horrors of conflict for women.1'8 For example, efforts were made during the Second World War to ensure the lawful treatment of women prisoners of war.® In the period after the Second World War, from time to time, the ICRC made efforts to ensure the humane treatment of women in various conflict situations.70 In the context of sexual violence against women, the silence was deafening, despite the appalling reality of this practice in all armed struggles. The ICRC however, reacted rapidly and positively in the context of the rape of women in the former Yugoslavia. The ICRC, early on in the conflict, declared that the grave breach of the 1949 Geneva Conventions constituted by "wilfully causing great suffering or serious injury to body and health", "obviously covers not only rape but also any other attack on a woman's dignity".71 The increasing recognition by the ICRC that women and armed conflict pose distinctive challenges to IHL has continued. For example, in 1993, the Final Declaration of the International Conference for the Protection of War Victims, declared its alarm at "the marked increase in acts of sexual violence directed notably against women and children" and reiterated "that such acts constitute grave breaches of international humanitarian law."72 The 26 tn International Conference of the Red Cross and Red Crescent, adopted by consensus a resolution dealing separately with sexual violence against women.7^

67 68 69 70 71 72 73

See Chinkin, supra note 58, at 13 (for an assessment of what has been achieved by feminists in the context of international law). See ICRC, Women and War, supra note 34. See Krill, supra note 2, at 356. Ibid, at 357. ICRC, Update on Aide, memoire of 3 Dec 1992. Para 13, Final Declaration of the International Conference for the Protection of War Victims, reprinted in (1993) 296 ICCR 377. Resolution 2 B, Final Declaration of the International Conference for the Protection of War Victims, reprinted in (1996) 310 ICCR 63.

16

International Humanitarian Law, Women and Armed Conflict

The resolution condemned this practice, reaffirmed rape in the conduct of armed conflict as a war crime, and highlighted the importance of enforcement of the relevant provisions and the need to train those involved in such processes. These developments in relation to sexual violence against women are of undoubted significance. The focus on sexual violence has tended to obscure other important aspects of women's experience of armed conflict that are as yet inadequately recognised and acknowledged. There are, however, the beginnings of a broader approach. For example, in 1998, the ICRC initiated a study to examine how women are affected by armed conflict around the world. 7 4 The study is to form the basis of guidelines for the activities of the organisation in relation to the protection and assistance of women and children in armed conflict.7^ Moreover, at the 2 7 * International Red Cross and Red Crescent Conference in 1999, the ICRC made a four year pledge to emphasise in its activities the need to ensure "respect" for women and girl children and to acknowledge their special needs in relation to health and assistance.7^ The question of women and armed conflict appears to be gaining recognition in the organisation as a separate topic requiring the development of specific strategies. Although women's perspective on armed conflict remains largely unarticulated and unacknowledged in any positive sense, their experiences frequently are appropriated in the interests of the warring factions. The Special Rapporteur on Violence against Women reports: Rape is used by both sides as a symbolic act. As depicted by Second World War posters in which the rape of a women was used to evoke the image of the 'rape' of France, rape is used by one side to demoralize the other. The rape of 'their' women is then used to increase the sentiments against the enemy and further demonize them.7'7 Human Rights Watch describes the contribution of widespread propaganda campaigns, portraying negative and stereotypical images of Tutsi women, to

74

75 76

77

See Statement by Mr Jacques Forster, Vice-president of the International Committee of the Red Cross (ICRC) New York 9 June 2000 23rd Session of the United Nations General Assembly: "Women 2000: Gender Equality, Development and Peace for the Twenty-first Century", New York 5-9 June 2000. Ibid. See also update on ICRC's Initiative to better respond to the needs and resources of women affected by armed conflict 29 Oct 1999, ICRC . See Pledge Statement of the ICRC at the 27th International Conference of the Red Cross and Red Crescent "To promote the respect of women in armed conflicts", (3 Nov 1999), ICRC . Coomaraswamy 1998 Report, supra note 28, pt I, para 6.

Women, Armed Conflict and International Law

17

the ensuing genocide and mass sexual violence against Tutsi women in Rwanda. 78 This stereotypical representation of women is also used to their disadvantage in their attempts to achieve equality in the military For example, one of the arguments against women serving in combat roles, voiced during the Persian Gulf conflict (1990-91), was that the American public could not tolerate the image of women killed and captured in combat.^ To date, therefore, although there has been progress in recognising the impact of armed conflict on women, this has not been reflected in IHL, other than in the context of sexual violence. The reforms to IHL that are required to achieve a measure of equality for women go far beyond this. After years on the fringe of human rights law, it is nowadays increasingly respectable to refer to women and human rights as a separate topic within the mainstream of international law. Although these concerns have impacted to some extent on IHL, the identification of women's human rights as a topic of concern is not reflected by a similar recognition that women and IHL warrant a separate focus. The structure of the book is a follows. Chapter Two describes what happens to women in armed conflict. Armed conflict for the purposes of the discussion in this Chapter is defined in the broadest sense, and in no way reflects the categorisation of conflicts found in IHL. 8 0 So we discuss the experience of women in international and non-international armed conflicts, howsoever characterised, be they long-standing, sporadic, ethnic or nationalistic in origin. The coverage of Chapter Three caused us some problems. In any work that purports to deal with IHL and women, the provisions dealing specifically with women are of primary importance. One of our fundamental critiques of IHL, however, is that the rules that are theoretically equally applicable to combatants and civilians in general, are gendered, in that they take a certain male view of armed conflict as their norm. To understand our criticisms the reader, therefore, needs some appreciation of the broad content of the general provisions. The solution we have adopted is to describe the historical development and current content of the rules of IHL that deal specifically with women. We also provide an overview of the field of application of IHL and selected general norms that are of particular significance for women. Readers are then referred to the specialist works on IHL if they require more information. This Chapter also considers war crimes,

78 79 80

Human Rights Watch, supra note 29, 15-19. See the further discussion infra Chapter 2. See J Milko, "Beyond the Persian Gulf Crisis: Expanding the Role of Servicewomen in the US Military", (1992) 41 Am ULR 1301, 1321-1322. See E Kwakwa, The International Law of Armed Conflict: Personal and Material Fields of Application (1992).

18

International Humanitarian Law, Women and Armed Conflict

crimes against humanity and genocide, to lay the groundwork for the discussion in Chapter 6. The development of crimes against humanity, although no longer limited to armed conflict situations, is linked to IHL. 81 Genocide, in comparison has had a separate development through the United Nations system.82 Chapter Four draws on the detail of Chapters Two and Three and examines the extent to which the regime of IHL addresses the experience of women of armed conflict. Having identified a significant dissonance between the two, we then canvass explanations for the limitations of the law. Although this work focuses on IHL, the reality of current developments in the context of law and the protection of women in armed conflict would be obscured without a consideration of initiatives in other fora that focus on women. Their impact on IHL is increasingly apparent, particularly in the context of sexual violence against women. This is the theme of Chapter Five. Some of the work of these bodies will find its way into human rights documents rather than IHL, or become part of the growing body of soft norms in this area. The work of such bodies assist in understanding the complexities involved in the analysis of why real advances in the protections for women in armed conflict are so difficult to achieve. Chapter Six extends the process of critical analysis that we undertook in relation to the substantive norms of IHL into the area of redress for victims of armed conflict. Chapter Seven contains proposals for further development of protections for women affected by armed conflict. As one of our major criticisms of IHL is its unrealistic boundaries, we were at some pains to avoid repeating this mistake in this work. Our suggestions therefore are broad in character and the fact that they identify the human rights framework as the most promising way forward, perhaps is a fitting conclusion to a work that argues that IHL, in the final analysis, has failed women.

81 82

See E Greppi, "The Evolution of Individual Criminal Responsibility under International Law", (1999) 81 IMC 531. See generally, M Roberge, "Jurisdiction of the ad hoc Tribunals for the Former Yugoslavia and Rwanda over Crimes against Humanity and Genocide", (1997) 321 IRRC 651.

CHAPTER 2 THE IMPACT OF ARMED CONFLICT ON WOMEN

1.

Introduction

One of our major arguments in this work is that women experience armed conflict differently from men. This is a difficult argument to establish given the paucity of sex differentiated data in relation to the impact of armed conflict.1 Statistics on sexual violence against women in warfare are increasingly available.2 The same is not true, however, for other distinctive ways in which women suffer as a result of armed conflict. This is not surprising, as traditionally men provide the reports and documentation associated with armed conflict. In this process, invariably women are subsumed under general categories such as civilians and combatants. As a consequence, the numerous aspects of women's lives that are detrimentally affected by armed conflict remain largely undocumented in mainstream accounts. Increasingly, however, it is possible to piece together a picture that more accurately presents how women's lives are affected by armed conflict.3 This is the aim of this Chapter. Although the majority of women experience armed conflict as civilians, there are increasing numbers of women combatants, and our discussion covers the situation of both these groups of women. 4 Any assessment of the effect of armed conflict on women requires consideration of a wide variety of factors, the relevance and impact of which differ considerably between cultures and individual women in those cultures. Many factors, such as race, ethnicity, nationality, class, age, disability and sexuality, in addition to gender, will affect a woman's experience of armed conflict.5 It is easy to over-simplify the issues, and to misinterpret the impact on women of events

1 2 3

4 5

See S Forbes-Martin, Refugee Women (1992) 13-14. See for example, the sources cited infra notes 62-97. For example, there are growing numbers of oral histories of women's experience of armed conflict, see for example, O Bennett et al. eds, Arms To Fight, Arms to Protect. Women Speak out About Conflict (1995) [hereinafter Arms to Fight}. See for example, A Helland et al., Women and Armed Conflicts: A Study for the Norwegian Ministry of Foreign Affairs (1999) 7, 18-23. Western feminists have been criticised for attempting to "essentialise" the experience of all women based on their gender, without regard to other factors that impact upon their lives. See C Mohanty, "Under Western Eyes: Feminist Scholarship and Colonial Discourses", in C Mohanty et al. eds, Third World Women and the Politics of Feminism (1991) 51; and T Higgins, "And-Essentialism, Relativism, and Human Rights", (1996) 19 Harv Women's LJ 89.

19

20

The Impact of Armed Conflict on Women

that take place in conflict situations. Nevertheless, it is possible to identify some common themes. In order to demonstrate the reality of armed conflict for women, we take a broad view of the impact of these events on their lives. The period of hostilities, with its attendant death and injury, is the obvious starting point for any consideration of the effects of armed conflict. The post-conflict period, where women frequently constitute the majority of the population, also presents distinctive challenges for women.*> Because of their role as combatants, historically men have been the primary victims of military operations. This is no longer the case. Civil wars are the predominant form of armed conflict in the world today. 7 In such struggles, communities become the battle field, and current figures suggest that civilians account for over ninety percent of casualties resulting from armed conflict.8 Such a development has serious ramifications for women who are most likely to experience conflict as part of the civilian population. Traditionally, emphasis has been placed on the suffering and heroism of men. The glorification of the combatant is an integral part of the culture of warfare.? Generally the trauma women experience as a result of armed conflict is disregarded. When attention is paid to women in armed conflict it is frequently exploitative and damaging to the women concerned. 10 Armed conflict is invariably accompanied by the disintegration of societal structures. The extent to which victims cope with its attendant disruption largely depends upon the position that they occupy in society. Those who are vulnerable will be the most detrimentally affected. One of the most significant factors leading to the disproportionate impact of armed conflict on women is the endemic discrimination that they experience in all societies. ] 1 The dominant role that men play in society generally equips

6

7 8 9

10 11

Interview with Sochua Mu Leiper, Director of Khemara, in H O'Connell ed, Women and Conflict (1993) 45. See also, K Mardy, "Project against Domestic Violence, Cambodia", in On the Record, Women of Southeast Asia Fight Violence (8 Mar 1999) 5, pt 3 (estimating that women comprise 60 percent of the population following the Khmer Rouge regime in Cambodia); Human Rights Watch, Shattered Lives: Sexual Violence During the Rwandan Genocide and its Aftermath (1996) [hereinafter Shattered Lives] 2 (estimating that following the 1994 conflict in Rwanda, women constitute 70% of the population). See supra Chapter 1 note 27. See supra Chapter 1 note 7. See J Gardam, "Gender and Non-Combatant Immunity", (1994) 3 Transnational Law and Contemporary Problems 345, 348-9; and C Enloe, Does Khaki Become You! The Militarization of Women's Lives (1983) 166. See the further discussion infra note 146 and accompanying text. For an example of the way in which endemic discrimination against women manifests itself during armed conflict, see the discussion infra notes 140 ff and accompanying text.

Women, Armed Conflict and International Law

21

them to cope with the deprivations accompanying armed conflict more effectively than women. The Beijing Platform for Action recognises that "[wjhile entire communities suffer the consequences of armed conflict and terrorism, women and girls are particularly affected because of their status in society and their sex." 12 Armed conflict exacerbates existing inequalities experienced globally by women and, moreover, may lead to new forms of discrimination against women.

2.

The Distinctive Experiences of Women Affected by Armed Conflict

a.

The Deliberate Killing of Civilian Women

Chivalric ideals frequently lead to perceptions that women and children will not be directly targeted during conflict. In some cases the death toll from armed conflict is higher for men than for women, but this is not universally true. Acts of genocide, such as the "Final Solution" implemented by the Nazis in Europe during World War II, target men, women, children, and the elderly without distinction. Indeed, when a strategy of deliberate extermination is being implemented, women are often amongst the first to die. Pregnant women were singled out for death during the selections conducted by the Nazis, as the carriers of the next generation of Jews.1 ^ Direct targeting of women has not been limited to the Holocaust. Massacres primarily involving women have been reported in many conflicts.14 Particularly during internal conflicts, women may be targeted as a consequence of the positions they hold in society or their specific skills. Amnesty International has documented how women from a broad range of professions, such as medicine, teaching, journalism, law, the judiciary, and political reformers, have been singled out for attack in conflicts around the world. 1 ' Women are

12

13 14

15

Fourth World Conference on Women, Action for Equality Development and Peace, Beijing Declaration and Platform for Action, UN Doc A/Conf. 177/20 (1995) [hereinafter Beijing Platform for Action] para 134. See F Karay, "Women in the Forced-Labor Camps", in D Ofer & L Weitzman eds, Women in the Holocaust (1998) 285 at 298. See for example, B Goldblatt & S Meinjtes, "South African Women Demand the Truth", in M Turshen & C Twagiramariya eds, What Women Do in Wartime: Gender and Conflict in Africa (1998) [hereinafter What Women do in Wartime] 27 at 47 (reporting that of the 128 people that died during the Biopatong Massacre of 1992 in South Africa, 48 were men, and 80 were women); A Jones, "Gender and Ethnic Conflict in Ex-Yugoslavia", (1994) 17(1) Ethnic and Racial Studies 115 at 119-120 (citing the massacre of 100 Muslim women in the town of Biscani in July 1992, and the targeting of Serbian women and children by Croatian forces in Goradze in August 1992). See Amnesty International, Women in the Frontline (1991) [hereinafter Women in the Frontline\ 9-13-

22

The Impact of Armed Conflict on Women

also vulnerable where they are involved in community leadership, or in running community support programs. For example, several women leaders of community organisations were murdered by the Shining Path in Peru.11' Moreover, women are often murdered when they are perceived as having feminist sympathies, or as failing to conform to the gender roles required of them. The treatment of women in Afghanistan, by the Taliban regime, and in Algeria, by the armed Islamic opposition, are examples of such behaviour.17 In addition to being targeted in their own right, women are frequently attacked because of their relationships with men. Women have been killed, seriously injured, or tortured, as a result of the political activities of their male relatives or associates.18 It is not just treatment by opposition forces that women have to fear. Parties to the conflict frequently locate military targets in or around civilian objects, in an attempt to shield them from military attack. Civilians are also used as human shields. Such tactics generally do not prevent attacks, but instead result in increased civilian casualties.19 There is also evidence, particularly in civil conflicts, of the use of women and children as "cannon fodder" by "friendly" forces.20 The effects of being targeted in armed conflict are distinctive for women. Women may take fewer precautions in such situations, relying upon misconceptions that they are not as vulnerable as men. 21 The traditional role of women as care-givers for the young, the elderly, the sick, or the wounded, limits their ability to react to the immediate dangers of armed attacks. Moreover, States frequently respond differently to the deaths of women and men. For example,

16

17 18 19

20 21

See C Schmidt, "Peru: The Government, the Rebels, and the Women in Between", (1992) 3(1) Ms 14 (describing the murder of Maria Elena Moyano, deputy mayor of Villa El Salvador, Lima). See also, C Moorehead, Hostage to a Male Agenda, Index on Censorship 24(4), (1995) 64, 65. See for example, Report of the Special Rapporteur on Violence against Women, Ms Radhika Coomaraswamy, UN Doc E/CN.4/1998/54 (1998) [hereinafter Coomaraswamy 1998 Report] pt 1A. See Women in the Frontline, supra note 15, at 14. See UN Doc S/16649 (28 June 1984) (in relation to the Iran/Iraq war); and US Department of Defence, "Report to Congress on the Conduct of the Persian Gulf War Appendix on the Role of the Law of War, April 10", (1992) 31 ILM 612 at 625. See for example, "Sri Lanka's Under-age War", (26 Aug 1995) 336(7926) Economist 26 (reporting the use of women and children as cannon fodder in Sri Lanka). See for example, L Weitzman & D Ofer, "The Role of Gender in the Holocaust", in D Ofer & L Weitzman eds, Women in the Holocaust (1998) 1 at 5 (reporting the failure of women to make plans to emigrate, hide or escape, prior to the Holocaust, with the result that women became disproportionate victims of the Nazi arrests). See also G Kirshenbaum, "Jadranka Cigelj and Nusreta Sivac", (1997) 7(1) Ms 64 at 66 (regarding similar misconceptions held by women during the initial phases of the Bosnian war).

International Humanitarian Law, Women and Armed Conflict

23

despite the large number of women killed in the Biopatong massacre in South Africa, only the families of the men that died were provided with legal assistance to pursue claims for compensation. 22 In recent years, there has been a marked trend towards the proliferation of small arms. Countries without sufficient financial resources to purchase more traditional heavy weaponry, particularly African countries, have become increasingly reliant upon small arms, such as landmines, hand guns, and rifles.2^ Small arms are a major threat to women. During the 1990s, it is estimated that small arms killed three million people and that eight out of every ten of these casualties were women and children.2"^ b.

"Collateral Damage" and Women

Increasingly, civilian casualties outnumber combatant casualties during armed conflict.^ This is a function of the changing nature of warfare, and the use of weapons of an indiscriminate nature. For example, in recent international armed conflicts, the deliberate choice of aerial bombardment as a military strategy has led to significant short and long-term civilian casualties.2(> Generally speaking, women form the majority of the civilian population in times of armed conflict. Thus, it is inevitable that they represent a disproportionate number of the civilian deaths of such conflicts. In many cases, civilians do not have adequate access to appropriate protective equipment such as gas masks, shelters, or other shields, that would mitigate the injuries sustained as a result of armed conflict. A study of fatalities during the 1991-92 conflict in Croatia estimates that sixty-four percent of deaths were civilians and that the majority of these were from head injuries.2? The authors of the

22 23 24 25 26

27

See Goldblatt & Meinjtes, supra note 14, at 47. See D Volman, "The Militarization of Africa", in What Women Do in Wartime, supra note 14, 150 at 154. See "Small Arms: UNICEF Documents Threat to Children" (21 July 1999) UN Wire, . See the sources cited supra Chapter 1 at notes 7, 8. See for example, Human Rights Watch, Needless Deaths in the Gulf War (1991) (detailing civilian casualties from the air campaign conducted by the coalition allies in the Persian Gulf conflict (1990-91); Report on the Human Rights Situation involving Kosovo, Submitted by Mary Robinson, High Commissioner for Human Rights (30 Apr 1999) UNHCHR, ; and id, Civilian Deaths in the NATO Air Campaign (2000) (confirming the large number of civilian casualties resulting from the NATO bombing campaign in Kosovo in 1999). See M Kuzman et al, "Fatalities in the War in Croatia 1991 and 1992: Underlying and External Causes of Death", (1993) 270(5) JAMA 626, 628.

24

The Impact of Armed Conflict on Women

study suggest that these casualties could have been reduced by improving civilian access to shelters, and ensuring that protective head equipment was available.28 The impact of landmines on women provides a further example of the gender-differentiated consequences of armed conflict. Despite intensified international efforts to eradicate landmines, they remain a serious humanitarian problem, particularly in civil conflicts. Civilians frequently constitute the majority of the victims of these indiscriminate weapons. 29 The vulnerability of women to death or injury from landmines depends, to a large extent, upon the division of labour in a particular country, and the placement of the mines. Figures from countries such as Cambodia, and Afghanistan, tend to suggest that more men than women are injured by landmines.3° However, some caution has been urged with respect to these figures. There is evidence to suggest that, as a result of their lower body mass, women are more likely than men to die from landmine injuries. Moreover, men are more likely than women to receive emergency medical treatment. Deaths are generally not recorded in the figures — only injuries. In addition, for a variety of reasons, men amputees may be more visible in communities than women amputees. These phenomena are undoubtedly reflected in the statistics.^1 There are other gender-differentiated consequences of landmines. The presence of landmines hinders the return of refugees, a factor that is most likely to affect women and children, as they constitute the majority of the world's refugee population.^ 2 Moreover, the high level of illiteracy amongst women in many countries severely affected by landmines hampers the effectiveness of signs warning of their presence. The use of other weapons, such as certain chemical weapons, can have particularly detrimental effects upon women. In recent times, there is a high level of

28 29

30

31 32

Ibid. See for example, R Gray, Humanitarian Consequences of Mine Usage (1993) 6, 8 (referring to study in Preshawar in 1992 that revealed 85% of wounds were sustained by persons engaged in non-military activities, such as farming, tending cattle, and travelling between villages). Cf I Woodmansey & L Maresca, "The Silent Menace: Landmines in Bosnia Herzegovina", (1 Feb 1998), ICRC (citing ICRC reports that soldiers accounted for 75-8% of land mine victims in Bosnia between March 1992 and December 1995). See ICRC, "Cambodia: Landmines in the Killing Fields: the Carnage Continues", (20 June 1996), ICRC (reporting that women accounted for 4.9% of landmine victims at Mongkol Borei Hospital between 10.1.94 and 30.9.95); and ICRC, "Afghanistan: the Deadly Legacy in Figures", (27 Mar 1996), ICRC (reporting that females over 16 years accounted for 1% of land mine wounds at Quetta ICRC hospital in 1995). See Africa Watch Committee, Land Mines in Angola (1993) 27-28; P Davies, War of the Mines: Cambodia, Landmines and the Impoverishment of a Nation (1994) 21-22. See the discussion of refugee women infra notes 101 ff and accompanying text.

Women, Armed Conflict and International Law

25

abortion amongst Vietnamese women of congenitally defective foetuses, a phenomenon that has been linked to the use of Agent Orange during the Vietnam War. 33 c.

Violence against Women

Violence against women is perhaps one of the clearest examples of how discrimination against women that exists in all societies during peace-time is exacerbated during periods of armed conflict. Violence is widely recognised as one of the most pervasive problems facing women in every country throughout the world, and one of the principal ways by which women are controlled, and patriarchal structures reinforced.3^ Statistics indicate a high probability that a woman will be raped in her lifetime,3^ and domestic violence is reported as a common occurrence by women in almost every country in the world. 36 When conflict breaks out, this violence escalates. Sexual violence against women has been particularly prevalent during armed conflict and takes many forms, including rape,3? forced sexual intercourse or other sexual acts with family members, 38 forced impregnation,3^ forced pregnancy,^0 sexual mutilation, sexual humiliation,^1 medical experimentation on

33 34 35 36 37

38 39

40

41

See I Lourdes Sajor, "Our Common Grounds", in Common Grounds, Violence Against Women in War and Armed Conflict Situations (1998) 1 at 6. See generally, United Nations Declaration on the Elimination of Violence against Women, UN Doc A/RES/48/104 (20 Dec 1993). See J Seager, The State of Women in the World Atlas (1997) 56. Ibid, at 27. See for example, S Brownmiller, Against Our Will: Men, Women and Rape (1975) 31-113; A Stiglmayer, "The War in the Former Yugoslavia", in A Stiglmayer ed, Mass Rape: The War against Women in Bosnia and Herzegovina (1994) [hereinafter Mass Rape] 1; Coomaraswamy 1998 Report, supra note 17, pt IA. See for example, Coomaraswamy 1998 Report, ibid (re Bosnia and Herzegovina, the case of B; and India, the case of Devki Rani Punjab). See for example, A Stiglmayer, "The Rapes in Bosnia-Herzegovina", in Mass Rape, supra note 37, at 131-137; Human Rights Watch, War Crimes in Bosnia Herzegovina, W 7/(1993) 21 (re the occurrence of this crime during conflict in Bosnia); and A Abdel Halim, "Attack with a Friendly Weapon", in What Women Do in Wartime, supra note 14, at 94 (re the occurrence of this crime during conflict in Sudan). See Stiglmayer, ibid; L Pitter & A Stiglmayer, "Will the World Remember? Can the Women Forget", (1993) 3(5) Ms 19 (detailing the practice in the Bosnian conflict of detaining women made pregnant as a result of rape, until abortion was not feasible). See for example M Goldenberg, "Memoirs of Auschwitz Survivors", in D Ofer & L Weitzman eds, Women and the Holocaust (1998) 330-331 (re women being forced to strip naked, and lie on tables, while SS officers jeered and poked the women's genitals with a stick).

26

The Impact of Armed Conflict on Women

women's sexual and reproductive organs,^2 forced abortion,^ forced sterilisation,^ forced prostitution,^ being compelled to exchange sexual favours for essential items, 46 being compelled to exchange sexual favours for the return of children,^7 trafficking in women,^8 pornography,^ and forced cohabitation/marriages. 5° The factors motivating these attacks are equally broad.?1 Women are subjected to sexual violence in a multitude of situations, including in detention camps specifically set up for that purpose,?2 while imprisoned,53

42

43 44

45

46

47 48

49 50

51

52

53

See for example, see the discussion infra at note 137 (re the medical experimentation carried out on women by the Nazis), and infra note 132 (re medical experimentation carried out on women in detention during the apartheid years in South Africa). See for example, IWRAW, (1993) 6(3) Women's Watch (re forced late-term abortions in Tibet). See for example, Asia and Pacific Development Centre, Women and Armed Conflict: A Statement on the Situations andforwarding of Recommendations to the 42nd Session of the UN Commission on the Status of Women, New York, 2-13 Mar 1998, 12 and 13 (re forced sterilisation of Tibetan women); and M Sissons, From One Day to Another: Violations of Women's Reproductive and Sexual Rights in East Timor (1997) 19-24 (discussing, inter alia, the use of Depo-Provera on East Timorese Women, and non-consensual tubal ligations). See for example, U Dolgopol & S Paranjape, Comfort Women: An Unfinished Ordeal (1994) (regarding forced prostitution of the "comfort women" by the Japanese Army prior to, and during, World War II). See for example, N Sancho-Liao, '"Clutching a Knifeblade' Human Rights and Development from Asian Women's Perspective", in H O'Connell ed, Women and Conflict (1993) 31 at 34; C Twagiramariya & M Turshen, "The Sexual Politics of Survival in Rwanda", in What Women Do in Wartime, supra note 14, at 101, 109 (for reports of this practice in the Philippines and Rwanda respectively). See also the discussion in Women in the Holocaust, supra note 13 (regarding this practice in the Nazi concentration camps). See for example, Coomaraswamy 1998 Report, supra note 17, at s HID, para 2 (re soldiers kidnapping refugee children and demanding sex from their mothers as ransom). See for example, African Rights, Rwanda: Death, Despair and Defiance (rev ed, 1995) 769 (re reports of the buying and selling of women among the interahamwe during the 1994 conflict in Rwanda); and P Finn, "Sex Slavery Flourishes in Kosovo", (24 Apr 2000) Washington Post Foreign Service Al. See C MacKinnon, "Turning Rape into Pornography: Postmodern Genocide", (1993) 3(4) Ms 2430 (re the conflict in Bosnia). See for example, Shattered Lives, supra note 6, at 56-62 (for reports of women being "rescued" only to become sexual slaves or "wives" of their captors during the 1994 conflict in Rwanda); and L McGrew, "Cambodian Women at Year Zero", (1999) 5(4) On The Record, Women ofSoutheast Asia fight Violence (for an account of forced marriage during the Khmer Rouge era in Cambodia). For a discussion of the factors motivating sexual violence, see Preliminary Report Submitted by the Special Rapporteur on violence against women, its causes and consequences, M. Radhika Coomaraswamy, UN Doc. E/CN.4/1995/42 (22 Nov 1994) [hereinafter Coomaraswamy 1994 Report] paras 274-283. See for example Stiglmayer, supra note 39, at 82, 115-131; Final Report of the Commission ofExperts Established Pursuant to Security Council Resolution 780 (1992), Annex IX Rape and Sexual Assault, UN Doc S/1994/674/Add.2 (28 Dec 1994) [hereinafter Yugoslav Commission Final Report] vol V (regarding the practice of rape in detention camps in Bosnia). See infra note 130and accompanying text.

Women, Armed Conflict and International Law

27

at check points and border crossings,54 in refugee camps,55 by gangs of assailants,56 in public places,57 a n J by looters.58 Often the sexual violence takes place in front of others, including family members.59 Although violence against women, particularly sexual violence, has been an integral part of armed conflict since time immemorial, it was largely undocumented until relatively recently. In her 1975 work, Susan Brownmiller presents stark accounts of rape and other sexual atrocities committed during the two World Wars, as well as the rape of women in conflicts in East Pakistan, and Vietnam.'' 0 Other writers have now begun to reconsider the issue of sexual violence during the Second World War.61 There is increasing documentation of sexual violence against women in armed conflicts, as well as during riots and periods of civil unrest. Nowadays there are reports and stories of sexual violence from virtually every conflict zone in the world, including: Aceh, 62 Afghanistan,63 Algeria,6^ Angola,65 Azerbaijan,66

54 55 56 57 58 59

60 61

62

63 64

65 66

See for example, Shattered Lives, supra note 6, at 39 (re rape of women at checkpoints during the 1994 conflict in Rwanda). See infra notes 112 ff and accompanying text. See Shattered Lives, supra note 6, at 42-48 (re gang rapes of women by militias during the 1994 conflict in Rwanda). See generally Yugoslav Commission Final Report, supra note 62 (regarding the rape of women in public places during the conflict in the former Yugoslavia). Ibid. See for example, Coomaraswamy 1998 Report, supra note 17, Introduction (re the testimony of Witness JJ in the prosecution of Jean-Paul Akayesu before the International Criminal Tribunal for Rwanda). See Brownmiller, supra note 37, at 40-86. On this conflict, see also R Seifert, War and Rape, Analytical Approaches (1993). See for example, I Chang, The Rape of Nanking: The Forgotten Holocaust of World War II (1997). See also K Askin, War Crimes Against Women: Prosecutions in International War Crimes Tribunals (1997). See Report of the Special Rapporteur on Violence against Women, its Causes and Consequences, Ms Radhika Coomwaraswamy, Mission to Indonesia and East Timor on the Issue of Violence against Women, UN Doc E/CN.4/1999/68/Add.3 (21 Jan 1999) [hereinafter Coomaraswamy 1999 Report] paras 9, 93-98. See for example, Asia and Pacific Development Centre, supra note 44, at 7; Coomaraswamy 1998 Report, supra note 17, pt I A. See for example, Z Sadou, "Algeria: The Martyrdom of Girls Raped by Islamic Armed Groups", in N Reilly ed, Without Reservation: The Beijing Tribunal on Accountability for Women's Human Rights (1996) 28; Coomaraswamy 1998 Report, ibid. See for example, International Federation Terre des Hommes, The Fake Start: A Preliminary Study on Sexual Violence, Abuse and Exploitation of Children in Times ofArmed Conflict (1996) 22. See for example, Asia and Pacific Development Centre, supra note 44, at 8.

28

The Impact of Armed Conflict on Women

Bosnia,67 Bougainville,''8 Chad,® Chechnya;70 Croatia;71 Cyprus, 72 East Timor,7^ Georgia,7^ Guatemala,^ Haiti, 76 India (Punjab),77 Indonesia,78 Irian Jaya,7^

67

See for example, Amnesty International, Bosnia-Herzegovina: Rape and Sexual Abuse by Armed Forces (1993); and Stiglmayer, supra note 39, at 82-169. The European Community also sent a mission headed by Dame Ann Warburton to investigate the treatment of Muslim women in the former Yugoslavia. See Letter dated 2 Feb 1993 from the Permanent Representative ofDenmark to the United Nations Addressed to the Secretary-General, UN Doc S/25240 (3 Feb 1993). See also the further sources cited infra Chapters 5 and 6 regarding sexual violence in the former Yugoslavia. Although most of the available documentation concerns rapes of Bosnian Muslim women, there are reports of sexual violence against Serbian women during the conflict in the former Yugoslavia. See for example Stiglmayer, ibid at 137-144 (regarding the rape of Serbian women); and S Raskovic, Serbian Women as Victims of War, paper presented in Toronto, 1994, Serbian Unity Congress (copy on file with authors.).

68

See T Looby, "Women in Bougainville", (1992) 42 Refractory Girl 66, 67; Asia and Pacific Development Centre, supra note 44, at 9. See Women's Commission of the Human Rights League of Chad & the Editors, "Women Denounce their Treatment in Chad", in What Women do in Wartime, supra note 14, at 118. See for example "Rape Allegations Surface in Chechnya", (20 Jan 2000) Nazran (reporting allegations of rapes by Human Rights Watch investigators in Ingushetia); and "Rape and Torture of Children in Chernokozovo 'Filtration Camp'", Amnesty International News Release (23 Mar 2000). See Pitter & Stiglmayer, supra note 40; and Stiglmayer, supra note 39, at 144-146. See M Roussou, "War in Cyprus: Patriarchy and the Penelope Myth", in R Ridd & H Callaway, eds, Caught up in Conflict, Women's Responses to Political Strife (1986) [hereinafter Caught up in Conflict} 32-34 (citing The Report of the Commission of the Council of Europe on Human rights in Cyprus 1974 (1976) 120). See for example, Amnesty International, East Timor: Seize the Moment, (1999) 28-29; id, Women in Indonesia and East Timor: Standing against Repression (1995); Coomaraswamy 1999 Report, supra note 62, at 75-92; and United Nations Office of the High Commissioner for Human Rights, Report of the International Commission of Inquiry on East Timor to the Secretary-General, UN Doc A/54/726, and S/2000/59 (31 Jan 2000) paras 126-127. See for example, International Federation Terre des Hommes, supra note 65, at 22. See for example, ibid; Coomaraswamy, 1998 Report, supra note 17, pt I A. See for example, Human Rights Watch Women's Rights Project, Rape in Haiti: A Weapon of Terror (1994); Coomaraswamy 1998 Report, supra note 17, pt I A. See for example, ibid. See for example, Coomaraswamy 1999 Report, supra note 62, at 62-74 (re rape of ethnic Chinese women). See for example, ibid, at 99-110.

69 70

71 72

73

74 75 76 77 78 79

Women, Armed Conflict and International Law

29

Kashmir,80 Kosovo,81 Liberia,82 Mozambique, 83 Myanmar (Burma),84 Namibia, 85 the occupied Palestinian territories,86 the Persian Gulf conflict (1990-91), 87 Peru,88 Philippines,8"3 Rwanda,^0 Sierra Leone,*31 Somali refugee women in Kenya,^2 the apartheid era in South Africa,93 S u d a n i Tibet,95 Uganda,*56 and West Papua.97

80 81

82

83 84

85 86

87 88 89 90 91 92 93 94 95 96

97

See for example, Human Rights Watch Women's Rights Project, Rape in Kashmir: A Crime of War (1993); IWRAW, (1991) 5(1) Women's Watch. See for example, UN Population Fund, Assessment Report on Sexual Violence in Kosovo, Mission completed by D Serrano Fitamant, Psychology Consultant to the UNFPA, 27 April-8 May 1999 (1999); World Vision, Kosovo: The Women and Children (1999); and Human Rights Watch, Kosovo: Rape as a Weapon of "Ethnic Cleansing" (2000) (documenting systematic sexual violence against ethnic Albanian women, and also condemning rape perpetrated against Serbian, Albanian and Roma women by ethnic Albanians). See for example, Association of Female Lawyers of Liberia (AFELL) & the Editors, "Hundreds of Victims Silently Grieving", in What Women Do in Wartime, supra note 14, at 129; Coomaraswamy 1998 Report, supra note 17, pt I A; and S Swiss & J Giller, "Rape as a Crime of War: A Medical Perspective", (1993) 270(5) JAMA 612. See for example, A de Abreu, "Mozambican Women Experiencing Violence", in What Women do in Wartime, supra note 14, at 73; Women in the Frontline, supra note 15, at 45. See for example, Women in the Frontline, supra note 15, at 45; Human Rights Watch Women's Rights Project, Rape, Forced Labor and Religious Persecution in N. Arakan (1992); an dT Cleaver & M Wallace, Namibia: Women in War (1991) 1. See for example, T Shikola, "We Left Our Shoes Behind", in What Women do in Wartime, supra note 14, at 138. See for example, S Sharoni, "Every Woman is an Occupied Territory: The Politics of Militarism and Sexism and the Israeli-Palestinian Conflict", (1992) 1(4) Journal of Gender Studies 447 at 458; and Women in the Frontline, supra note 15, at 22. See for example, Women in the Frontline, supra note 15, at 44; and Report of the Special Rapporteur on the Situation ofHuman Rights in Kuwait under Iraqi Occupation, UN Doc E/CN.4/1992/26 (1992). See for example, America's Watch & Women's Rights Project, Untold Terror: Violence Against Women in Peru's Armed Conflict (1993); Coomaraswamy 1998 Report, supra note 17, pt I A. See International Federation Terre des Hommes, supra note 65, at 22. See for example, African Rights, supra note 58; and Shattered Lives, supra note 6. See generally the sources cited infra Chapters 5 and 6 regarding sexual violence in Rwanda. See for example, G McDougall, "UN mission to Sierra Leone in June 1999", (1 July 1999) UN Wire 15. See for example, Africa Watch, Seeking Refuge, Finding Terror: The Widespread Rape of Somali Women Refugees in North Eastern Kenya (4 Oct 1993) 5(13). See for example, Goldblatt & Meintjes, supra note 14, at 27. See for example, Abdel Halim, supra note 39, at 85. See for example, Asia and Pacific Development Center, supra note 44, at 13See for example, N Matovu, "Wartime Abduction and Sexual Abuse in Uganda: The Story of Agnes", in N Reilly ed, Without Reservation: The Beijing Tribunal on Accountability for Women's Human Rights (1996) 34; and Swiss & Giller, supra note 92, at 612. See for example, Asia and Pacific Development Center, supra note 44, at 14.

30

The Impact of Armed Conflict on Women

Sexual violence against women during armed conflict is the rule rather than the exception. The non-inclusion of some conflicts in this list does not necessarily indicate the absence of sexual violence. It is more likely to be a reflection of the lack of documentation of such crimes. Moreover, the profile of sexual violence varies between conflicts, and is related more to Western bias in reporting and international action, than to the prevalence or severity of the violence. United Nations (UN) peacekeeping forces and forces acting under the authority of the Security Council also have contributed to the abuse of women in conflict situations. There are many reports of rape and sexual harassment by these forces, as well as complicity in sexual abuse perpetrated by parties to the conflict.?8 Women are also at risk during armed conflict of violence from their own family and community members. For example, in conflicts where the religious or cultural identity of groups is threatened, practices such as female genital mutilation may become more entrenched, as groups struggle to maintain and reinforce their identity.99 Further, there is mounting evidence that rates of domestic violence increase significantly in war zones, as well as in societies recovering from armed conflict.100 Women in inter-ethnic marriages are particularly vulnerable in these situations. d.

Displaced and Refugee Women

It is estimated that in 1998, refugees throughout the world numbered approximately 11 million and that the number of internally displaced persons was

98

See for example, Pitter & Stiglmayer, supra note 40 (detailing abuse of Muslim and Croatian women by UNPROFOR); and B Woodley, "Soldiers Warned on Sex Abuse", (17 Jan 2000) The Australian 1 (detailing the sexual harassment of East Timorese women and girls by Australian soldiers forming part of INTERFET forces in East Timor), and M Eddy, "American Solider Charged with Killing Ethnic Albanian", Associated Press (16 Jan 2000) (detailing the alleged sexual assault and killing of an 11 year old ethnic Albanian girl by an American solider serving as part of KFOR). See generally, A Orford, "The Politics of Collective Security", (1996) 17 Mich JMIL 372 at 377-79. 99 See H Osman, "Somalia: Will Reconstruction Threaten Women's Progress?", (1993) 3(2) Ms 12 at 13; Coomaraswamy 1998 Report, supra note 17, s III D, para 6. See also, WHO, "Violence against Women In Situations of Armed Conflict and Displacement", in UN Doc WHO/FRH/WHD/97 (8 July 1997). 100 See for example, Asia and Pacific Development Center, supra note 44, at 11 (detailing high levels of domestic violence in Cambodia following the Khmer Rouge regime); H Bernstein, For their Triumphs and For their Tears (1985) 23 (referring to the high rate of domestic violence in Wintersveld, South Africa during the Apartheid era); and I Sekulic, "Inside Setbia: The War at Home", (1994) 4(5) Ms 18 at 19 (detailing statistics regarding domestic violence from the SOS Belgrade Hotline for women survivors of rape and domestic violence in 1994 during the war in the former Yugoslavia).

Women, Armed Conflict and International Law

31

approximately 5 million. 10* One of the major causes of such mass movements of persons is armed conflict and internal disturbance. It is known that a large percentage of refugees and internally displaced persons, particularly those fleeing internal armed conflicts, are women. 1 0 2 However, detailed demographic data relating to refugee populations is rarely available. Moreover, women and children are frequently included in the same category.103 Nonetheless, there is sufficient information to indicate the distinctive experience of refugee women. Women may be forced to leave their homes in an effort to protect themselves, their children, and other vulnerable family members. Forced evictions, moreover, are frequently used as a strategy of war as, for example, in the conflicts in the former Yugoslavia and Rwanda.10^ The home is where most women traditionally live out their lives and carry out their responsibilities and the loss of their home impacts distinctly and harshly on women. 105 Becoming a refugee adds a new dimension to the vulnerability of women. Refugee women may be injured or killed while escaping regions where there is on-going fighting. The journey itself invariably involves considerable physical hardship. When women are separated from their homes and communities their vulnerability to gender-based violence increases.106 They are frequently forced to offer sex in return for safe passage, essential food, shelter, refugee status, or documentation. 107

101 See UNHCR, Refugee and Others of Concern to UNHCR - 1998 Statistical Overview (1999). 102 The Beijing Platform for Action (supra note 12, at para 136) estimates that 80% of refugees are women and children; and see Analytical Report of the Secretary General on Internally Displaced Persons, Commission on Human Rights, Forty-eighth Session, (11 Jan 1999) Agenda Item 11 (a). See also Progress Report on Implementation of the UNHCR Guidelines on the Protection of Refugee Women, UN Doc EC/SCP/74 (22 July 1992) para 6. The forcible eviction of persons from their home or lands is a widespread human rights problem and is not confined to armed conflict. The Committee on Economic Social and Cultural Rights (General Comment No 7, UN Doc E/C/12/1997/4 (1997)) has recognised forced eviction as a gross violation of human rights. See also L Farha, "The Case of Forced Evictions", in Common Grounds (1998) 77. 103 Progress Report on Implementation of the UNHCR Guidelines on the Protection of Refugee Women, UN Doc EC/SCP/74 (22 July 1992) para 6, UNHCR, supra note 101, at para 5. 104 See Lourdes Sajor, supra note 33, at 5. See also Farha, supra note 102, at 82-94 (describing forced evictions against the Kurds, and also in Burma). 105 For a discussion of displacement and refugee women, see S Forbes Martin, Refugee Women (1992); and The impact of Armed Conflict upon Children: Report Submitted pursuant to the resolution adopted by the General Assembly AIRES/481157 to the Fifty First Session of the United Nations General Assembly, UN Doc/51/306 (26 Aug 1996) [hereinafter Machel 1996 Report] 26, 62-64. 106 See Analytical Report of the Secretary-General on Internally Displaced Persons, supra note 102, at para 58. 107 See Coomaraswamy 1998 Report, supra note 17, pt III D(l). See also Arms to Fight, supra note 3, at 36.

32

The Impact of Armed Conflict on Women

Refugee women are often denied legal status in their own right. In some cases, refugee registration cards and other essential documentation, are issued only to husbands and fathers. 108 Upon disintegration of the family unit, (and abandonment of wives is not uncommon amongst refugee populations), women are left in a vulnerable position. The United Nations High Commissioner for Refugees (UNHCR) reports the difficulties faced by women when ration cards are issued only to husbands, who subsequently abandon their families.10^ Women may also be forced into dependence upon their husbands as a result of procedures to determine refugee status. 110 Conditions in refugee camps pose particular problems for women. Refugee camps are generally poorly sanitised and lacking in essential services and basic supplies. Outbreaks of disease, particularly diarrhoea, respiratory infections, and infectious diseases such as measles and tuberculosis, are common place. 111 Violence against women is prevalent in refugee camps. 112 Refugee women are raped and sexually assaulted by other refugees and camp officials.1 ^ They are also at risk of being forced into prostitution, 11 ^ and domestic violence is prevalent. 1 ^ There is increasing awareness of the importance of designing camp life to provide security for women, although adequate resources for this task are seldom available. For example, alarming rates of sexual violence at a refugee camp in Kenya have been addressed by an innovative program that provides bundled firewood, thus reducing the incidence of attacks on women foraging in the bush. However, such programmes are invariably cut in the face of funding constraints and the need to ensure the supply of food and water takes priority. 116 Many of the difficulties experienced by refugee women are exacerbated by the fact that men are regularly in charge of refugee camps, or are responsible for making decisions about planning and resource allocation. In some cases, cultur

108 Progress Report on Implementation of the UNHCR Guidelines on the Protection of Refugee Women, UN Doc EC/SCP/74 (22 July 1992) para 25. 109 Ibid, para 12 and 19. 110 Ibid, para 28. 111 Machel 1996 Report, supra note 105, at 140. 112 See UNHCR, Sexual Violence Against Refugees: Guidelines on Prevention and Response (1995) 4-5; Coomaraswamy 1998 Report, supra note 17, pt III D. 113 See discussion on sexual violence supra notes 37 ff and accompanying text. See also UNHCR, ibid. 114 See UN Wire (21 May 1999) 5; L Montgomery, "Gangs are Preying on Kosovar Women", (25 May 1999) The Inquirer (reporting that Kosovar women, were lured from refugee camps on the promise of employment, free travel, and schooling in other European countries such as Italy, only to find themselves forced into prostitution.); and Asia and Pacific Development Centre, supra note 44, at 7 (regarding refugee women from Afghanistan). 115 See Coomaraswamy 1998 Report, supra note 17, s III D, para 3. 116 See KVick, "For Somali Refugees, No Safe Haven," (3 June 1999) Washington Post Foreign Service A 19 (reporting that sufficient funds to continue the firewood programme would not be available due to the decrease in donations for refugees in Africa, following the Kosovo crisis.).

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al conditioning and taboos inhibit the participation of women in such tasks. 117 As a result the needs of women are generally not adequately addressed. Unequal food distribution is a particular problem. 118 Furthermore, women seldom have access to appropriate reproductive health services.119 In some cases, gender-based persecution is reinforced by the administrators of refugee camps. For example, it is reported that camps run by religious fundamentalists in Pakistan perpetuate sex discrimination against Afghan refugees.120 Western agencies have also been criticised for imposing "their concept of what traditional women's roles were or should be, even romanticising the dependency of women." 121 Repatriation, and the recovery of homes and possessions at the conclusion of armed conflict is of great importance to refugee and displaced women. Women are frequently unable to exercise these rights. For example, women forced to flee during the 1995 attack on Srebrenica have been unable to return to their homes, and continue to campaign for assistance.122 Furthermore, some women experience difficulties in qualifying for asylum status due to restrictive definitions that inadequately recognise gender-based persecution.123 Women who are resettled in other countries face distinctive challenges as they attempt to build their new lives.12^ e.

Women in Detention

There is relatively little literature examining the experience of civilians in detention. 125 The description of life in the Jewish Ghettoes, forced labour camps, con centration camps, and extermination camps of Nazi controlled Europe, provides

117 See Progress Report on Implementation of the UNHCR Guidelines on the Protection of Refugee Women, UN Doc EC/SCP/74 (22 July 1992) paras 36 and 37. 118 Ibid, para 19. 119 Ibid, para 20; and Progress Report on Refugee Women and UNHCR's Framework for Implementation of the Beijing Platform for Action, UN Doc EC/47/SC/CRP.45 (15 Aug 1997) para 8. 120 See Asia and Pacific Development Centre, supra note 44, at 7. 121 Forbes Martin, supra note 105, at 13122 See for example, the Srebrenica Justice Campaign, Intellinet . See also the sources cited regarding the Srebrenica massacre infra note 151, 152. 123 This is a subject that has received considerable attention from other commentators. See for example, J Greatbatch, "The Gender Difference: Feminist Critiques of Refugee Discourse, (1989) 1(4) IJRL 518; and Report of the Expert Group Meeting, Gender-Based Persecution, Toronto Canada, November 1997, UN Doc EGM/GBP/1997/Report (1997). 124 See for example, E Pittaway, Refugee Women-Still at Risk in Australia: A Study of the Resettlement Needs and Experiences of Refugee Women in their First Two Years in Australia (1991). 125 See M Potts, "Long-Term Effects of Trauma: Post-Traumatic Stress among Civilian Internees of the Japanese during World War II", (1994) 50(5) Journal of'Clinical Psychology 681 at 682. Fora rare account of the experience of women civilians imprisoned by Japanese forces during World War II, see H Colijn, Song of Survival: Women Interned (1995).

34

The Impact of Armed Conflict on Women

some insight into the particular experiences of women. Women appeared more able than men to withstand the hunger that was an integral part of life in detention. 12 ^ A similar phenomenon has been observed in other conflicts.127 However, it appears that women in the Holocaust suffered more from unhygienic conditions in the camps and from the incidence of lice and other bugs. 128 Women who did not suffer from amenorrhoea as a result of malnutrition had to cope with menstruation without any sanitary provisions.12^ Many women in concentration camps were compelled to submit to sexual relations with other detainees to obtain food or other essential commodities. 13^ Male detainees were more likely to be allocated work in storerooms and in other areas where they had access to provisions. Overall, commentators suggest that women are less likely to be detained as a result of armed conflict than men. However, this frequently means that those women who are detained suffer worse conditions because facilities are not designed to meet their needs. Women may be detained with men, and female guards are frequently not available.131 Although both men and women are routinely tortured in detention, there are gender specific methods of torture. For example, in South Africa during the apartheid era, pregnant women were subjected to electric shocks; medical care was withheld leading to miscarriages; body searches and vaginal examinations were carried out; rape and forced intercourse with other prisoners occurred; and foreign objects, including rats, were inserted into women's vaginas. In addition, women's fallopian tubes were flooded with water, sometimes destroying their child-bearing ability. 132 Stories of harm to children were used by authorities to traumatise their mothers. 133 Such tactics are particularly evident in cultures

126 See M Unger, "The Status and Plight of Women in the Lodz Ghetto", in D Ofer & L Weitzman eds, Women in the Holocaust (1998) 123 at 136-137; R Bondy, "Women in Theresienstadt and the Family Camp in Birkenau", in id, 310 at 318. 127 See C Boua, "Cotton Wool and Diamonds", (1993) 242 New Internationalist 20 at 20 (reporting the distinct responses of men and women to starvation during the Khmer Rouge years in Cambodia). 128 See Bondy, supra note 126, at 318. 129 Ibid, at 315. 130 See C Rittner & J Roth, Women and the Holocaust: Different Voices (1993) Gisella Pearl, 112-113 and Olga Lengyel, 127. See also, Karay, supra note 13, at 296-298. 131 See ICRC, Women and War (1995) 12 (comments of Dr Hernan Reyes, gynaecologist and ICRC medical coordinator for visits to detention centres). 132 See Goldblatt & Meinjtes, supra note 14, at 37 (citing Federation of Transvaal Women, A Woman's Place is in the Struggle, Not Behind Bars! (1987); and Nomvula Mokonyane and Jessie Duarte, speaking at the Workshop on Gender and the Truth and Reconciliation Commission, Centre for Applied Legal Studies, University of Witwatersrand, 19 Mar 1996). 133 Ibid, at 40.

Women, Armed Conflict and International Law

35

where women are valued and recognised primarily as mothers. For example, children born to women while in custody during the "dirty war" in Argentina, were taken from their mothers at birth.^4 ft has been argued that in doing so "the Argentine military state asserted its power over a distinctive aspect of female identity, motherhood". ^5 Amnesty International has documented the use of rape, acts of sexual humiliation, and threats of harm to women's reproductive systems as methods of torture in detention centres throughout the world. ^ Sexual mutilation is another well-known tactic used to torture women. Gender-specific medical experimentation was widely practiced in the Nazi concentration camps during World War II. This included the application of short-wave rays to the lower abdomen and the removal of the ovaries and uterus. 1 ^ The forced labour of women is used by all parties in armed conflicts. It takes many forms, including domestic tasks such as washing and ironing soldier's uniforms, washing dishes, cooking, making coffee and cleaning rooms. 138 Women are also compelled to work in labour camps by their captors, and as unpaid porters for their own forces. 1 ^ Where labour is paid, women may receive much lower rates of pay than men, and consequently be in higher demand. f.

Reinforced Gender Stereotypes

Armed conflict reinforces gender stereotypes that contribute to the subordination of women. During these times, considerable emphasis is placed on women as wives and mothers, with the responsibility for breeding the next generation of soldiers. 140 As long as women stay within their constructed gender roles, they perform a valuable function for the military in many areas, for example, as nurses, social workers, prostitutes, wives, mothers, and widows.1^1 These stereotypes

134 See Women in the Frontline, supra note 15, at 35. 135 M Brinton Lykes et al, "Human Rights and Mental Health Among Latin American Women in Situations of State-Sponsored Violence", (1993) 17 Psychology of Women Quarterly 525 at 535136 See Women in the Frontline, supra note 15, at 18-24 (citing such countries as El Salvador, India, Pakistan, Romania, Somalia, the Israeli Occupied Territories, and Burma). 137 See Rittner & Roth, supra note 130, at 124-125 (Olga Lengyel). 138 See for example, Kirshenbaum, supra note 21, at 66 (recounting stories from survivors of the Omarska detention camp during the conflict in Bosnia and Herzegovina); Coomaraswamy 1998 Report, supra note 17, pt I A (describing reports of forced domestic labour by women in Liberia). 139 See for example, McGrew, supra note 50 (describing the use of women as unpaid porters by the Khmer Rouge in Cambodia). 140 See Papic, "Nationalism, Patriarchy and War in ex-Yugoslavia", (1994) 3(1) Women's History Review 115 at 117. 141 See Enloe, supra note 9, at 212.

36

The Impact of Armed Conflict on Women

also generate new forms of discrimination against women. In times of armed conflict, many societies seek to strictly control the "virtue" of women. If women are perceived to flout these rigid social dictates, they are subjected to harsh and discriminatory punishments. For example, in Britain during the two World Wars, women were subjected to discriminatory curfews as a measure to prevent the perceived decline in their morality. 142 French women who were suspected of "fraternising" with German soldiers during World War II, had their heads shaved in public. When Somali women were seen talking to American soldiers during "Operation Restore Hope", they were stripped and beaten. 143 Stereotypes of women are manipulated for propaganda purposes by all parties to a conflict. For example, in the 1994 conflict in Rwanda, constructed images of both Hutu and Tutsi women were used as propaganda to incite violence. 144 Moreover, belligerents often capitalise upon reports of sexual violence against "their" women to garner sympathy and support for their side, and to strengthen resolve against the enemy. 145 Enloe comments on the publicity surrounding the rape of women during the two World Wars.14(^ However, details of these crimes are largely absent from historical accounts of the conflicts, and, moreover, no steps were taken to provide any redress for the women involved.14^ It is not only parties to a conflict who appropriate accounts of the suffering of women for their own purposes. Women in the former Yugoslavia have expressed the view that their suffering was used for political purposes by other

142 See P Summerfield, "Women in the Two World Wars", (1989) 23 Historian 3 at 7-8. 143 See J El-Bushra & C Mukambuga, "Women, War and Transition", (1995) 3(3) Gender and Development 16 at 17-18 (citing K Maier, "Women Fall Victim to Somalia's Prejudice", (5 Jan 1993) Independent). 144 See for example, Coomaraswamy 1998 Report, supra note 17, pt I (discussing the Hutu "Ten Commandments" published in the Kangura newspaper on 10 Dec 1990, the first three of which specifically relate to women); and Shattered Lives, supra note 6, at 15-19. 145 For example, there are indications that warring factions in the former Yugoslavia used reports of sexual violence against "their" women for propaganda purposes. See for example, The Prosecutor v Karadzic and Another, Rule 61 Hearing, Case No IT-95-18, Transcript of Proceedings (2nd July 1996) (evidence of Christine Cleiren, member of the Commission of Experts established by the Security Council to investigate violations of IHL in the former Yugoslavia). 146 See C Enloe, "Afterword: Have the Bosnian Rapes Opened a New Era of Feminist Consciousness?", in Mass Rape, supra note 37, 219 at 219. 147 See S Brownmiller, "Making Female Bodies the Battlefield", in Mass Rape, supra note 37, 180 at 182. See also. S Gibson, "The Discourse of Sex/War: Thoughts on Catharine MacKinnon's 1993 Oxford Amnesty Lecture", (1993) 2 Fern Legal St 179 (discussing the manner in which women's pain has been appropriated by men during armed conflict).

Women, Armed Conflict and International Law

37

members of the international community, ^ 8 and by the media, ^ 9 but otherwise was disregarded. g.

Loss of Family Members

Widowhood, and the loss of other male family members, is one of the most likely outcomes of armed conflict for women.150 l n S ome armed conflicts, men and boys are singled out specifically for execution. For example, during the armed conflict in the former Yugoslavia, Serb forces separated the population of Srebrenica into two groups: males between the ages of approximately 16 and 65; and women, children, and the elderly. There is evidence that thousands of the men and boys were summarily executed and their bodies consigned to mass graves. Thousands more remain unaccounted for.151 One survivor reports having lost 146 male family members. 152 The loss of loved ones causes immeasurable emotional, 15 ^ social,15^ and economic 155 suffering for the women who are left to reconstruct their lives following the conflict. The resulting trauma is exacerbated in cases where women have been forced to witness these killings. Wives and mothers of the "disappeared" and other missing persons, experience the anguish of not knowing what has happened to their family members, and of being unable to bury their

148 See I Sekulic, "Inside Serbia: The War at Home", (1994) 4(5) Ms, 18 at 19 (detailing comments made to the SOS-Belgrade Hotline by women survivors of rape and sexual violence.) See also Kirshenbaum, supra note 21, at 68. 149 See Kirshenbaum, ibid (describing incentives offered by the media for the stories of survivors of sexual violence). 150 See for example, J Zur, "The psychosocial effects of 'La Violencia' on widows of El Quiche, Guatemala", in H O'Connell ed, Women and Conflict (1993) 27 at 27 (estimating that, in 1993, at least 120,000 women were widowed as a result of the civil war in Guatemala); Coomaraswamy 1998 Report, supra note 17, pt I (estimating that, following the 1994 conflict in Rwanda, 14.5% of all women, and 22.5 % of women over 21 years, are widows). 151 See generally, Report of the Secretary-General Pursuant to General Assembly Resolution 53135 (1998), Srebrenica Report, UN Doc A/54/549, 15 November 1999 paras 318 ff. 152 See Memorandum of Conversation, Meeting Between The Representatives of the Organization of Mothers of Srebrenica and Podrinja and Prosecutor for the International War Crimes Tribunal, Madame Del Ponte, (4 Feb 2000) (copy held with authors). 153 See the discussion infra. See also R Mollica et al., "The Psychosocial Impact of War Trauma and Torture on Southeast Asian Refugees", (1987) 144(12) Am ] Psychiatry 1567 (reporting that Cambodian widows were particularly affected by serious psychiatric and social impairments.) 154 See the discussion infra. 155 See the discussion infra.

38

The Impact of Armed Conflict on Women

dead.156 For these women, seeking out the truth, and reclaiming the bodies of deceased loved ones, are issues of paramount importance. For example, the women of Srebrenica are campaigning, inter alia, for immediate exhumation of all graves and identification of bodies, and the release of any survivors being held prisoner. ^7 They also seek to ensure that all those responsible for the deaths of family members are held criminally liable.^ 8 h.

Loss of Social Position

The fear and poverty associated with armed conflict often leads to social isolation for women, particularly in cultures with elaborate traditions of hospitality. !59 Moreover, there are devastating social consequences for women who are widowed as a result of armed conflict. In South Africa, widows recounted to the Truth and Reconciliation Commission how they have become outcasts in their own society.160 Women frequently comprise the majority of the population at the end of an armed conflict.1(^ Consequently re-marriage, which is often essential for restoring social status, is difficult. In some societies, the shortage of marriageable men following armed conflict leads to an increase in polygamy.1*^2 Although women may see polygamy as their only option for survival, it invariably operates to their detriment, particularly for the subsequent wives.1® Wives of the "disappeared" face particular difficulties. Their indeterminate status often

156 See for example, C Sennott, "Apology of Lebanese Figure Breaks Silence on Civil War", (28 Feb 2000) The Boston Globe (reporting the continuing anguish of the wives and mothers of 17,000 Lebanese who disappeared during the war); M Brinton Lykes, "Human Rights and Mental Health Among Latin American Women in Situations of State-Sponsored Violence", (1993) 17 Psychology of Women Quarterly 525 at 530 (reporting the "profound psychological consequences" suffered by women who are unable to obtain information about "disappeared" family members in Latin America); and S Tully, "A Painful Purgatory: Grief and the Nicaraguan Mothers of the Disappeared", (1995) 40(12) Soc Sci Med 1597. 157 See the Srebrenica Justice Campaign, . 158 A complaint has been filed with the ICTY by the Mothers of Srebrenica and Podrinja Associate, seeking to hold various individuals, including UN personnel, responsible for the massacre at Srebrenica. See . 159 See M Turshen, "Women's War Stories, in What Women do in Wartime, supra note 14, at 1, 16. See also Health and Welfare in Iraq after the Gulf Crisis, Harvard Study Team Report (1991) 15 (reporting social isolation experienced by women in Iraq following the Persian Gulf conflict (1990-91)). 160 See Goldblatt & Meinjtes, supra note 14, at 36. 161 See the statistics cited supra note 6. 162 See for example, Boua, supra note 127, at 21 (describing widespread polygamy in Cambodia following the Khmer Rouge era). 163 See Turshen, supra note 159, at 1, 16.

Women, Armed Conflict and International Law

39

prevents re-marriage, with the situation exacerbated by religious or social constraints.164 The social consequences of amputation resulting from landmine injuries are distinctive for women. A woman amputee is frequently unmarriageable, or, if married, may be rejected by her spouse.165 While men amputees may also find that their prospects of marriage diminish, studies of the impact of landmines in conflict zones such as Cambodia,166 and Somalia,167 indicate that unmarried women amputees suffer the greatest detrimental social impact. Much has been written about the social stigma experienced by survivors of sexual violence. This phenomenon may be exacerbated by religious and/or cultural traditions. Women are frequently rejected by their spouses, fiancees, and families.168 For example, following the widespread rape of women during the 1974 war in Cyprus, many Cypriot men reportedly applied to the Church for divorce or dissolution of their engagement contracts. This behaviour was accepted and excused.1® Women who become pregnant as a result of rape suffer additional hardships. In light of these attitudes, survivors of sexual violence frequently express the view that they wish they had been killed. On many occasions, women commit suicide rather than return to face their communities. At the end of World War II, instead of feeling exhilarated at the prospect of liberation, the "comfort women" enslaved by the Japanese Army felt intense fear and dread about the prospect of returning home. Many committed suicide rather than face the shame and ostracism they anticipated upon their return.170 In some societies, parents may send their daughters away from home, or marry them at an early age, in an attempt to protect them from sexual violence.171

164 See Roussou, supra note 72, 25 at 42 (detailing the reluctance of the Church to grant divorces to the wives of the disappeared following the war in Cyprus). 165 See Davies, supra note 31, at 111. 166 See Gray, supra note 29, at 7. 167 See A de Waal etal., Violent Deeds Live On: Land Mines in Somalia and Somaliland (1993). 168 See for example, Africa Watch, supra note 92, at 17-18 (describing the reaction of the husband of a raped Somali refugee woman); and Helsinki Watch, War Crimes in Bosnia-Herzegovina, 171-172 (1993) (describing the experience of young Muslim women in the former Yugoslavia). 169 See Roussou, supra note 72, at 34. 170 See U Dolgopol, "Women's Voices, Women's Pain", (1995) 17 HRQ 127 at 138. See also Asia and Pacific Development Center, supra note A4, at 7 (for reports of women/girls committing suicide as a result of sexual violence in Afghanistan). 171 See Asia and Pacific Development Center, ibid (describing the sending of Afghan girls to Pakistan); and International Federation Terre des Hommes, supra note 65, at 29, 30 (regarding early marriage).

40

i.

The Impact of Armed Conflict on Women

Economic Effects of Armed Conflict

Women are economically disadvantaged as a result of armed conflict, and this situation is likely to continue into the post-conflict era, when women make up the majority of the population. 172 Moreover, in many cultures, it is women who have the most to gain from economic development, and are thus particularly disadvantaged when these resources are diverted into the war effort. The economic implications for refugee women are compounded by the loss of their homes and possessions.173 Inflation is commonplace during periods of armed conflict.17^ As a result, women, who generally are responsible for running the household, are less able to meet the basic needs of their families.175 This situation is exacerbated by the unlikelihood of any offsetting increase in their income during these periods. 17 ^ When families are forced to sell items of property to survive, it is often the possessions of women that are sold first. For example, the Persian Gulf conflict (1990-91), and its associated economic sanctions, reportedly led to many Iraqi women selling their gold jewellery to ensure the survival of their family. In Iraqi culture, where gold is an important part of a bride's dowry and is a factor determining social status, the dependence and vulnerability of many women has consequently increased.177 Armed conflict may lead to the assumption by women of new roles in the public sphere. 178 In some cases armed conflict removes abusive partners from the

172 See S Urdang, And Still they Dance: Women, War and the Strugglefor Change in Mozambique (1989) (discussing the burden women bear of providing for the family in the aftermath of conflict); V Rosess, "Women Shoulder the Burden of Cambodia's Economy", (1994) 9 World of Work: The Magazine of the ILO 24-25. 173 See Farha, supra note 102 (for a discussion of armed conflict and forced evictions). 174 See for example, H Swanwick, The War in its Effect on Women (1917) 10 (noting the price rises caused by World War I, and the effect upon women). See also Report and Recommendations Made By the Panel of Commissioners Concerning the First Instalment of Individual Claims for Damages up to US$100,000 (Category "C" Claims"), UN Doc S/AC.26/1994/3 (21 Dec 1994) 61 (in which the United Nations Compensation Commission notes the inflationary impact on the prices of goods and services of the 1990 invasion of Kuwait by Iraq). 175 See Health and Welfare in Iraq after the Gulf Crisis, supra note 159, at 10 and 20 (reporting that Iraqi women identified their "greatly reduced ability to feed their families" as the most serious consequence of the Persian Gulf conflict (1990-91)). 176 See Swanwick, supra note 174, (noting in the context of World War I, that women earn less than men, and are less likely to receive "war bonuses" or pay increases). 177 See Health and Welfare in Iraq after the Gulf Crisis, supra note 159, at 8 and 20. 178 See G Braybon & P Summerfield, Out of the Cage: Women's Experience In Two World Wars (1987); S Fishman, "Waiting for the Captive Sons of France", in M Higonett et at eds, Behind The Lines (1987) 182; ] Thompson, "Women and War", (1991) 14 Women's Studies International Forum 63 at 66.

Women, Armed Conflict and International Law

41

home and allows women the opportunity to develop new skills. ^ 9 Unfortunately many of these advantages are lost when the conflict ends. 180 Discriminatory laws or customs often prevent women from competing in the market place. 181 Lack of education and training, and general community attitudes, make it difficult for women to support themselves and their families. Moreover, for the majority of women, their new roles in the public sphere are not accompanied by any reduction in their responsibilities in the home. In fact, the reverse is often the case. 182 Women are frequently left to care for war victims, including abandoned and orphaned children.18^ Moreover, women who give birth to children with congenital defects as a result of the use of chemical weapons, such as Agent Orange, experience particular problems in caring for these children. Armed conflicts create large numbers of households headed by women. 18 ^ Statistics reveal that these households are likely to be poor.18^ For example, war in Mozambique created many widows and female-headed households, who struggle as a result of restrictions on their access to credit, land, capital, and other services. 18(> Traditional methods of earning income, such as through food production, are frequently lost to women as a result of armed conflict. 187 Women may be forced to resort to illegal activities to make a living. For example, women caught

179 See A McLeod, Marking Time in Tuzla, (26 May 1996) Guardian Weekly; and Women's Commission of the Human Rights League of Chad & the Editors, supra note 69, at 126-127. 180 See Osman, supra note 99, at 12; Machel 1996Report, supra note 105, at 193; and Summerfield, supra note 142. 181 See Coomaraswamy 1998 Report, supra note 17, pt I (describing discriminatory laws preventing women from, inter alia, inheriting land, and obtaining credits or loans in Rwanda. Note, however, domestic legislation adopted in 2000 conferring equality in inheritance rights in Rwanda. See Special Representative on Children and Armed Conflict Welcomes Rwandan Law Allowing Girls to Inherit Property, Press Release HR/4465 (20 Mar 2000); interview with Sochua Mu Leiper, supra note 51 at 45 (describing the difficulties experienced by women heads of households after the Khmer Rouge era in Cambodia). 182 See for example, Health and Welfare in Iraq after the Gulf Crisis, supra note 159, at 14 and 16 (reporting that 80 percent of Iraqi women surveyed reported an increase in domestic responsibilities following the Persian Gulf conflict (1990-91)). 183 See for example, F Del Mundo, "Foster Families in Rwanda", (1995) 2 Refugees 14 (estimating that 95,000 children were separated from their families during the 1994 conflict in Rwanda). 184 See for example, Turshen, supra note 159, at 16. 185 For example, in Africa, between 80 and 90 percent of poor households are headed by women, see Seager, supra note 35, at 21, 105. 186 See de Abreu, supra note 83, at 75. See also interview with Sochua Mu Leiper, supra note 5, at 45 (describing the difficulties faced by women in Cambodia who have assumed the role of breadwinner in the years following the Pol Pot years). 187 See Machel 1996Report, supra note 105, at 152.

42

The Impact of Armed Conflict on Women

up in conflict in the Sudan have been imprisoned for illegally brewing and/or selling liquor. 188 During armed conflict in Chad, women adopted a range of strategies for economic survival, including selling their labour and possessions, trading in home-produced commodities, joining the army, and turning to prostitution. 189 At the end of the conflict, many women find they have no other means of survival, and prostitution becomes institutionalised. This phenomenon has been particularly evident in Cambodia. 190 Women survivors of sexual violence may experience particular financial hardship. In 1993 it was estimated that in the former Yugoslavia, between 1,000 and 2,000 women became pregnant as a result of rape. 1 ^ Estimates of the number of women impregnated as a result of rape during the 1994 conflict in Rwanda range from 2,000 and 5,000. 192 These women must assume the financial burdens of abortion, pregnancy, adoption, or raising the children concerned. Sexual violence also frequently results in serious medical complications that require on-going treatment. Wives of the "disappeared" may not be eligible for State and other benefits, as their husbands are not legally recognised as dead. 19 3 Amnesty International reports that widows in Guatemala are forced to attribute the disappearance of their husbands to opposition guerrilla forces, in order to become eligible for government compensation. 1 ^ j.

Access to Essential Supplies and Services

Armed conflict invariably results in shortages of food, water, clothing, shelter, health care and sanitation. Traditionally, women are responsible for meeting the basic needs of their families. These tasks are rendered difficult and often dangerous by the breakdown of societal conditions brought about by armed conflict.

188 See Abdel Halim, supra note 39, at 89-90. 189 See A Djibrine Sy, "Conflict and the Women of Chad", in H O'Connell ed, Women and Conflict (1993) 10 at 11-12. Similarly, there is evidence that prostitution has increased in Iraq following the Persian Gulf conflict (1990-91). See Health and Welfare in Iraq after the Gulf Crisis, supra note 159, at 7. 190 See Machel 1996Report, supra note 105, at 97. 191 See G Halsell, "Women's Bodies a Battlefield in War for "Greater Serbia"", (Apr/May 1993) 9(9) Washington Report on Middle East Affairs, . 192 See Shattered Lives, supra note 6, at 3. 193 See Zur, supra note 150, at 29-30. See also Roussou, supra note 72, at 38 (detailing non-eligibility of women for pensions following the war in Cyprus). 194 See Women in the Frontline, supra note 15, at 2.

Women, Armed Conflict and International Law

43

The imposition of economic sanctions associated with armed conflict, exacerbates the situation. ^5 The use of sanctions as a non-violent alternative to the use of force has been increasingly questioned in recent years, given their indiscriminate and devastating effects on vulnerable sections of the target community, including w o m e n . ' ^ (i) Women's health When food is scarce, women are particularly prone to malnutrition. 1 ^ Women commonly ensure that all members of the family are fed before they attend to their own needs. ^ 8 Some cultures dictate that men are to eat first, followed by women. ^ 9 Lack of adequate nutrition can lead to a range of detrimental health consequences for women, such as anaemia, damage to their reproductive system, and potentially, loss of life. 200 Statistics indicate that vulnerable groups, such as women and children, experience high rates of nutritional deficiency diseases in refugee camps. 201 Women who are malnourished may be unable to breast feed their children. 202 Moreover, forced changes to diet attendant upon armed conflict affect women differently than men.

195 See generally, Health and Welfare in Iraq after the Gulf Crisis, supra note 159 (detailing the impact of economic sanctions on women in Iraq following the Persian Gulf conflict (1990-91)). 196 See Report of the Secretary-General, Supplement to an Agenda for Peace: Position Paper of the SecretaryGeneral on the Occasion of the Fiftieth Anniversary of the United Nations, UN Docs A/50/60, S/1995/1 (25 Jan 1995) paras 66-76; and Committee on Economic, Social and Cultural Rights, General Comment No 8 The Relationship between Economic Sanctions and Respect for Economic, Social and Cultural Rights, UN Doc E/C. 12/1997/8 (5 Dec 1997). On rhe impact of economic sanctions upon women, see for example, B Bhatia et at, Unheard Voices: Iraqi Women on War and Sanctions (1992). 197 See Looby, supra note 68, at 66, 68; and Report on the Implementation of Article 21 of the Convention on the Elimination of All Forms of Discrimination Against Women, UN Doc CEDAW/C/1996/3/Add.l (1995). 198 See for example, Health and Welfare in Iraq after the Gulf Crisis, supra note 159, at 15 (reporting this practice by women, including pregnant women, in Iraq). 199 For example, in 1995 the International Committee of the Red Cross (ICRC) reported that 38 percent of Kabul's residents surveyed suffered from malnutrition. The figure was much higher amongst girls, because in Afghan culture boys are fed first, and girls frequently receive only leftovers. See also J Vickers, Women and War (1993) 91. 200 See for example, Health and Welfare in Iraq after the Gulf Crisis, supra note 159, at 12 (reporting high rates of anaemia among Iraqi women due to the absence of adequate nutrition following the Persian Gulf conflict (1990-91), and as a result of the ongoing economic sanctions against that State). 201 See Vickers, supra note 199, at 30. 202 SeeMacbel 1996Report, supra note 105, at 158-159.

44

The Impact of Armed Conflict on Women

The reproductive role of women makes them particularly vulnerable to shortages in medicine, reliable birth control, and medical treatment. 203 Pregnancy and illegal abortion rates may increase during armed conflict due to the lack of birth control, and the high incidence of rape during such times. 204 Adequate facilities for pre- and post-natal care are unlikely to be available. The physical and physiological pressures inherent in armed conflict situations can result in miscarriage, premature labour, low birth weight babies, and menstrual problems.2°5 Maternal mortality rates rise sharply, with easily treatable conditions leading to fatalities.206 These problems are exacerbated in some conflicts by the deliberate targeting of maternity hospitals and gynaecological clinics.20'7 In war zones such as Afghanistan, there is direct discrimination against women in access to medical care. Women can only be examined by other women and discriminatory educational policies ensure that there are very few female physicians. 208 In the absence of express prohibitions, cultural inhibitions often prevent women utilising health services, as the majority of health professionals are men. 20 ^ Women have unequal access to medical treatment for long-term injuries caused by armed conflict. For example, women who have been injured by landmines are less likely to be aware of the prosthetic services available, and cultural sensitivities may prevent them from seeking treatment. For example, the situation in Cambodia demonstrates problems facing women with landmine injuries. First, prosthetics workshops are generally dominated by male personnel, and women may experience shame and embarrassment at the prospect of strangers touching their legs. Secondly, women often find it impossible to arrange for their

203 See Final Report of Investigative Mission into the Treatment of Muslim women in the former Yugoslavia, UN Doc S/25240 (3 Feb 1993); and Forbes Martin, supra note 105. 204 See for example, Health and Welfare in Iraq after the Gulf Crisis, supra note 159, at 12 (describing the lack of contraception and increase in illegal abortions affecting Iraqi women following the Persian Gulf conflict (1990-91)). 205 See for example, ibid (reporting these health problems amongst Iraqi women following the Persian Gulf conflict (1990-91), and as a result of the ongoing economic sanctions against that state). 206 See Looby, supra note 68, at 67 (on the high rate of deaths during child birth, from conditions that would otherwise be considered minor, in Bougainville, as a result of the economic embargo imposed by Papua New Guinea). 207 See F Pelka, "Voices from the War Zone", (Mar/Apr 1995) The Humanist (discussing attacks in Croatia, and Bosnia, where maternity hospitals and gynaecological clinics were among the first targets of Serbian aircraft and artillery). 208 See Report of the United Nations Interagency Gender Mission to Afghanistan, 12-24 November 1997 (Office of the Special Adviser on Gender Issues and Advancement of Women, New York, UN) at para 27; and Asia and Pacific Development Center, supra note 44, at 7. 209 See Machel 1996Report, supra note 105, at 150.

Women, Armed Conflict and International Law

45

family and village responsibilities to be carried out for the two or three weeks that may be required for treatment. 210 Thirdly, the relative poverty of women disadvantages them in obtaining costly prosthetic aids. Moreover, their need for such aids is unlikely to be accorded priority in patriarchal family structures. 211 Rape and acts of sexual violence have serious and life threatening implications for women's health. For women who have been raped, there is a risk of contracting HIV/AIDS. This is a particular problem in Sub-Saharan Africa, the area with the highest rate of the HIV/AIDS virus. 212 In Rwanda, thousands of girls and women who were raped during the 1994 conflict have now tested positive for HIV. 21 ^ Survivors of sexual violence are also at risk of contracting other sexually transmitted diseases,21^ or of sustaining permanent damage to their reproductive system. Surviving "comfort women" have reported a wide variety of health complications.215 Frequently, insufficient medical resources are available to meet the needs of women subjected to sexual violence. For example, the Special Rapporteur on Violence against Women reports that following the 1994 conflict in Rwanda, there were only five gynaecologists available to assist women. While health services are equipped to deal with general injuries, such as bullet wounds and machete cuts, their capacity to adequately address problems resulting from sexual violence is limited.21*' In common with most survivors of armed conflict, women survivors suffer severe psychological trauma. The vulnerability of women to post-traumatic stress disorder, and other psychological conditions, is slowly receiving greater recognition. 21 ' 7 One of the main findings of a study of the impact of the civil war in Afghanistan on the lives of women was the very high incidence of psychosomatic disorders. This trauma was primarily associated with the loss of family

210 211 212 213 214 215

216 217

See Davies, supra note 31, at 108-109. See Machel 1996Report, supra note 105, at 116. See Seager, supra note 35, at 112. See Twagiramariya & Turshen, supra note 46, at 110. However, see Shattered Lives, supra note 6, at 3, 76 (highlighting the problem of attributing causation between rape and HIV/AIDS). See Coomaraswamy 1998 Report, supra note 17, pt III D. See Japan Federation of Bat Associations, Supplementary Explanation of the Recommendation on the Issue of "Comfort Women" (1995) n 40 at 7 (for details of the health problems experienced by the "comfort women"); G Hicks, The Comfort Women (1994) 94 (describing permanent damage caused by "cleansing solutions" to the reproductive systems of the "comfort women"). See Coomaraswamy 1998 Report, supra note 17, s II. See for example, UNHCR, Guidelines on Evaluation and Care of Victims of Trauma and Violence (1993); see Machel 1996Report, supra note 105, at 107. See, however, U Dolgopol, "A Feminist Appraisal of the Dayton Peace Accords", (1997) 19 Adel LR 59 (criticising the Dayton Peace Accords for the lack of support offered to victims of sexual violence in the Former Yugoslavia).

46

The Impact of Armed Conflict on Women

members through death, disappearance, or imprisonment. 218 There is some evidence to suggest that the psychological trauma of civil conflict for women is more severe.21<3 Such trauma commonly causes, or contributes to, a range of physical consequences for women, including menstrual problems, hair loss, high blood pressure, miscarriage, inability to breast feed, increased smoking, skin problems, insomnia, and weight loss. 220 In many societies, women are primarily responsible for maintaining their culture and traditions. Armed conflict, particularly where it involves the targeting of cultural or ethnic identity, deprives women of this role, often producing adverse psychological effects.221 Similarly, armed conflict disrupts and renders difficult the role of women as care-takers of the health of family members, thereby causing them particular emotional and psychological strain. 222 There are many emotional and psychological consequences for women survivors of sexual violence. Women report feeling fear, betrayal, denial, depression, rejection, and guilt. A sense of betrayal and fear is exacerbated when the perpetrator is known to, and trusted by, the woman concerned. Rape trauma syndrome and post-traumatic stress may also result from sexual violence.22^ Fear of ostracism frequently leads to women refusing to report sexual violence. Women thus remain silent about their experience, further compounding their suffering and limiting prospects for the punishment of perpetrators. 22 ^ Many "comfort women" were unable to form intimate relationships following

218 See F McLachlan, "Life During Wartime: Women and Conflict in Afghanistan", in H O'Connell ed, Women and Conflict (1993) 13 at 13 (detailing the symptoms experienced by women in such circumstances). See also Zur, supra note 150, at 30 (reporting similar findings in relation to women in the civil war in Guatemala). 219 See Zur, ibid, at 29. 220 See for example, Health and Welfare in Iraq after the Gulf Crisis, supra note 159, at 12 and 18 (reporting these health problems amongst Iraqi women following the Persian Gulf conflict (199091), and as a result of the economic sanctions against that State). 221 SeeTurshen, supra note 159, at 9. See also Brinton Lykes et al, supra note 135, at 533 (describing the psychological consequences for women, as custodians of culture, of being separated from the land, and their language and dress). 222 See Health and Welfare in Iraq after the Gulf Crisis, supra note 159, at 11 (reporting the burden on Iraqi women of trying to ensure that the health care needs of children were met during the Persian Gulf conflict (1990-91)). 223 See for example, Brinton Lykes et al., supra note 135, at 527 (referring to the incidence of rape trauma syndrome and post-traumatic stress among women victims of state-sponsored sexual violence in Latin America). 224 See for example, Dolgopol, supra note 170, at 138 (describing the psychological impact on the surviving "Comfort Women" of being unable to recount their experiences), and Coomaraswamy 1998 Report, supra note 17.

Women, Armed Conflict and International Law

47

the war, and were denied the opportunity of marriage and motherhood. 22 ^ If abortion is not an option for women, they experience the additional trauma associated with giving birth to, and raising, a child conceived through rape. For example, it is estimated that during the 1994 conflict in Rwanda, rape resulted in the birth of between 2,000 and 5,000 children.22^ These children are referred to as "little interahamwe" or "devil's children". 227 The response of local communities, governments, and the international community, is a relevant factor in the psychological impact of armed conflict for women. The historical failure to acknowledge sexual violence as a crime has exacerbated the trauma of survivors of these events. The accompanying disdain and social ostracism that they experience further inhibits their recovery.228 Moreover, in many cultures women are made to feel in some way responsible for the sexual violence they have experienced.22^ (ii) Access to emergency relief There is widespread gender-based discrimination in the allocation of scarce emergency relief in conflict situations.23° A significant proportion of aid fails to reach women survivors. 2 ^ Almost invariably, men are placed in charge of the decision-making process regarding humanitarian assistance and its distribution. This is despite the fact that women are generally far more experienced in food production, distribution and preparation, than men. 2 ^ 2 Consequently women are frequently disadvantaged, either deliberately, or because their needs are not properly understood. In some cases, food is diverted to resistance fighters, or sold

225 See for example, the story of Ri Po Pu from the Democratic Peoples Republic of Korea, in Dolgopol, supra note 170, at 145-147. 226 See Twagiramariya & Turshen, supra note 46, at 104 (citing Royte). 227 Id; and see Turshen, supra note 159, at 16; Shattered Lives, supra note 6, at 79-80. 228 See the discussion supra note 168 and accompanying text. 229 See "Testimony of Felicite Umutanguha Layika", in N Reilly ed, Without Reservation: The Beijing Tribunal on Accountability for Women's Human Rights (1996) 40 (describing how raped women and women forced to become "wives" of their captors following the 1994 conflict in Rwanda, were subsequently treated with suspicion, and accused of using the "sex card" to avoid being massacred). See also the further discussion infra Chapter 6. 230 See Report of the Representative of the Secretary-General, Mr Francis M Deng, submitted pursuant to Commission on Human Rights Resolution 1995157, Internally displaced Persons, UN Doc E/CN.4/1996/52 (1996). 231 See J Fitzpatrick, "International Norms and Violence Against Women", in R Cook ed, Human Rights of Women: National and International Perspectives (1994) 532; and Pelka, supra note 207. 232 See C Bertini, "To Feed the World, Get the Food to the Women", (12 Nov 1996) The Globe and Mail A19 (reporting that women produce 80% of food in Africa and 60% of food in Asia).

48

The Impact of Armed Conflict on Women

on the black market. 233 Sexual favours are also demanded for food and other supplies. The type of supplies provided as part of emergency relief efforts and the gender balance of teams of experts sent to provide humanitarian assistance, also reflects a gender bias that disadvantages women. To date the teams have been dominated by male personnel, who may not be particularly sensitive to problems faced by women survivors.234 For example, sanitary provisions have been regarded as a minor concern by male relief workers and other officials. This is not the reality for women, for whom such items are basic for their dignity and well being. 2 ^ Religious considerations frequently impact on the supplies provided to women who have been raped during armed conflict. For example, the Roman Catholic Church withdrew its contribution to UN agencies, such as UNICEF, for supplying "morning after pills" to women raped during the 1992-1995 conflict in Bosnia. 236 k.

Women Combatants

Historically, women were not always excluded from combat, but in most cultures it has been regarded as inimical to perceptions of their natural roles.23'7 There are notable examples of women, such as Eleanor of Aquitaine and Joan of Arc, who defied the codes of the day. These women were, however, regarded with contempt by the knightly classes for their unfeminine behaviour. 238 Moreover, in the nineteenth century, women participated in the Austrian and Italian armies, some receiving prestigious military honours. 23 ^ However, such women were the exceptions to the rule.

233 Ibid (reporting comments of the executive director of the UN World Food Program regarding the importance of the participation of women in the distribution of food aid). 234 Helga Hernes estimates that at most, 20% of humanitarian and emergency aid workers are women. See Written statement by Ambassador Helga Hernes, Special Adviser in the Royal Ministry of Foreign Affairs on Peacekeeping and Preventative Diplomacy (Norway), to the 42nd Session of the CSW, New York 2-13 March 1998, Panel III: Women and Armed Conflict. 235 See R Marshall, "Refugees, Feminine Plural", (1995) 2 Refugees 3 at 9. 236 See UN Wire (14 April 1999) 6. 237 See Edward Hall Hall's Chronicle (1809) 149-250, cited in T Meron, Bloody Constraint War and Chivalry in Shakespeare (1998) 139 at note 17. 238 See J Johnson, Just War Tradition and the Restraint of War (1981), 136. See Meron, ibid, at 137140 (for a discussion of the views of contemporary commentators as to women combatants). 239 See Vickers, supra note 199, at 19.

Women, Armed Conflict and International Law

49

In recent years, arguments based on equality have allowed the increased participation of women in the role of combatant.240 Globally, however, women make up only two per cent of regular army personnel.241 Women are similarly under-represented in peacekeeping operations, although they are seen as having particular conflict resolution skills to offer in this context. The treatment of women soldiers by regular military institutions reflects the subordinate position of women in society generally.242 They are overwhelmingly found in the rank and file and are rarely in senior command positions. The traditional perception of women as nurturing, caring and compassionate, often continues in their military roles. "Women soldiers in the IDF (Israeli Defence Force) have an additional, non-assigned, though culturally encouraged, function. With their femininity, in sharp contrast to the rugged army milieu, these women soldiers serve as a nurturing factor, especially in the combat units. They are considered to soften the atmosphere in the unit, reminiscent of home and family".24^ In light of this stereotypical perception of women in the military, not surprisingly, there is its corollary: widespread sexual harassment and sexual violence against women soldiers.244 In fact there is evidence that such behaviour is more prevalent in the military than in other sections of society.245 The military, to an extent not shared by any other section of society, reinforces gender constraints of masculinity and femininity.24^ Attempts by women to cross the boundaries of these roles are perceived as threatening the masculinity of male soldiers and are often violently opposed. The pattern of sexual abuse continues in captivity. For

240 For example, the United States in recent years has lifted its restrictions on women flying aircraft in combat. For a study of past and present policies of the United States in relation to this issue, see C Horrigan, "The Combat Exclusion Rule and Equal Protection", (1992) 32 Santa Clara LR 229; and J Milko, "Beyond the Persian Gulf: Expanding the Role of Servicewomen in the United States Military", (1992) 41 Am ULR. 1301. See also E Symons, "Under Fire: Canadian Women in Combat" (1990) 4 CanJWomen &L All, 486-488 (for a summary of the practice of other States in relation to women in combat positions). 241 See UNDP, Human Development Report (1995) 45. 242 See UN Division for the Advancement of Women, "Gender-based Persecution", Report of the Expert Group Meeting (Nov 1997) 52; and Vickers, supra note 199, at 18-19. See also Canadian Centre for Foreign Policy and Development, "Options", Report on the Roundtable on Gender and Peacebuilding (1997) 36 (discussing the different needs of women on demobilisation). 243 R Gal, "The Israeli Female Soldier - Myth and Reality", in J E Lundeberg et al. eds, Wartime Medical Services: second international conference, Stockholm, Sweden, 25-29 June 1990: proceedings (1990)320,331. 244 See Coomaraswamy 1998 Report, supra note 17. See also Abdel Halim, supra note 39, at 96-97. 245 See Enloe, supra note 9, at 88-190; and Vickers, supra note 199, at 19. 246 See the further discussion infra Chapter 4 note 130 and accompanying text.

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The Impact of Armed Conflict on Women

example, Cynthia Enloe writes of the sexual violence directed against captured US women combatants in the Persian Gulf conflict (1990-91). 2 ^ 7 The women combatants subjected to this abuse found themselves in a difficult political position. To complain of this criminal behaviour was to add weight to the argument that women should not be allowed in positions where they risked falling into the hands of the enemy and being subjected to such treatment. No such difficult choices are presented to male combatants who are mistreated in captivity. Their suffering adds to their heroic image.2^8 For many years women have played a significant role in paramilitary forces. 2 ^ In recent times, women and young girls have fought in conflicts in South Africa, Mozambique, El Salvador, Guatemala, Peru, Sri Lanka, the Philippines, Eritrea and with Palestinian fighters in Lebanon and the Israelioccupied territories. 25° They have proved to be highly effective in guerilla-style warfare, for example, in gaining close access to enemy personnel without arousing suspicion. 2 5! In many cases women have been active and enthusiastic members of such movements. 2 ? 2 In some cases the women recruited into resistance groups acquire rights and status as fighters that they had never previously enjoyed.2^3 However, such positive gains for women combatants are exceptional. In general, women's experience in irregular armed forces is no better than that of their sisters in regular armies. 2 ^ Frequently they are used for such menial and dangerous tasks as carrying supplies and clearing mines. They occupy lowly positions, and in addition to their military duties are expected to carry out traditional roles of cooking, cleaning, and providing sexual services to male combatants.2^5 Where women

247 See Enloe, supra note 9, at 190-191. 248 An example of such a phenomenon is the public outcry over the parading of Coalition prisoners in the Persian Gulf conflict (1990-91) and the relative inattention to civilian suffering. See ] Gardam, "The Law of Armed Conflict: A Gendered Regime?", in D Dallmeyer ed, Reconceiving Reality: Women and International Law (1993) 171 at 172. 249 For a description of the experience of women combatants in SWAPO see, T Shikola, supra note 35, at 141-145; and in relation to the role of women in the armed struggles against France and the United States in Vietnam, see Bennett et al eds, supra note 3, at 159-179. 250 See Vickers, supra note 1999, at 19. It is reported that one fifth of combatants in Eritrea are women, see: D Hurst, "Ethiopia Strikes out for the Sea", (30 May 1999) Guardian Weekly. 251 See for example, Bennett et al. eds, supra note 3, at 159-179. 252 See for example, ibid, at 73. 253 See for example, ibid, describing women's positive experiences in theTigrayan Liberation Front (at 72) and in the Liberation Tigers of Tamil Eelam (at 146). 254 See Abdel Halim, supra note 39, at 96; Enloe, supra note 9, at 161-164; and see J Stiehm, "Algerian Women: Honor, Survival and Islamic Socialism", in L Iglitzin & R Ross eds, Women in the World: A Comparative Study (1976) 229. 255 See UNHCR, supra note 112, at 30-31.

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have joined armed forces clandestinely, they may have no official documentation of their involvement, and may thereby be denied pensions or other entitlements.^ 6

3.

Conclusion

There are some positive aspects to the impact of armed conflict on women.2^7 Indeed, for some women it can be a time of empowerment as they take over roles traditionally performed by men.2?8 Yhe new situations that confront women in these times may allow them to move out of the realm of the private, to assume responsibilities in the public sphere and develop independence and selfrespect.2^ Commentators have pointed out the positive effect of armed conflict on some patriarchal societies.260 In many cases, however, the gains that women may have made during hostilities are lost on the return to peace.261 In some cases, women may be deprived of previously held rights, as when fundamentalist revolutionary groups attain power. Overall, however, the above discussion demonstrates the catastrophic, pervasive and distinctive impact of armed conflict on women, and the challenging nature of responding to the humanitarian problems encountered by women caught up in conflict.

256 See UNHCR, Rebuilding a Future Together II: UNHCR and Refugee Women (1997) at 10. 257 SeeCEnloe, The Morning After: SexualPolitics atthe End of'the Cold'War (1993) 61. 258 See generally, Arms to Fight, supra note 3; Braybon & Summerfield, supra note 178; Fishman, supra note 178, at 182; Thompson, supra note 178, at 66. 259 See for example, Arms to Fight, ibid, at 10-11 (in relation to women in El Salvador). 260 See Enloe, supra note 257, at 62-64. For the impact of years of civil war on patriarchal Somali society, see H Keynan, "Somalia: The Great Escape", in H O'Connell ed, Women and Conflict (1993) 26. In relation to Chad see, Djibrine Sy, supra note 189, at 10. In relation to Liberia, see Arms to Fight, ibid, at 28. 261 See Osman, supra note 99, at 12; Machel 1996Report, supra note 105, at 88; Fishman, supra note 178, at 193; Summerfield, supra note 142, at 3; Arms to Fight, ibid, at 158 (in relation to women in Vietnam).

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CHAPTER 3 INTERNATIONAL HUMANITARIAN LAW, WOMEN AND ARMED CONFLICT

1.

Introduction

This Chapter describes the development and current content of international humanitarian law (IHL) that are of relevance to women. * Limited protections for women in times of armed conflict have existed in most civilisations.2 Their common theme has been the prohibition of the killing of women (in common with children and the elderly) and of sexual violence against women.3 The significance of these restrictions has been somewhat exaggerated and they were honoured more in the breach than in practice. Modern IHL can be conveniently divided into those rules that govern the conduct of hostilities and those that deal with the protection of victims of armed conflict.^ Theoretically, women benefit from all the provisions of IHL. In 1

2

3 4

There are many general works on IHL, see for example, A Roberts & R Guelff, Documents on the Law of War (2nd ed, 1989); D Schindler & J Toman eds, The Laws of Armed Conflicts: A Collection of Conventions, Resolutions and Other Documents (2nd ed, 1981); L Green, The Contemporary Law of Armed Conflict (2nd ed, 1998); and D Fleck ed, Handbook of Humanitarian Law in Armed Conflict (1995). See for example, Green, ibid, at 20, 23; C Greenwood, "Historical Development and Legal Basis", in D Fleck ed, Handbook of Humanitarian Law in Armed Conflict (1995) paras 108-109; T Meron, Bloody Constraint War and Chivalry in Shakespeare (1997) 72-75, 136-141; M Bassiouni & P Manakus, The Law of the Lnternational Criminal Tribunal for Yugoslavia (1996) 615 and M Bassiouni, Crimes Against Humanity in International Criminal Law (1992) 197 (in relation to rape). Ibid. The term "The Law of The Hague" was formerly frequently used to describe the rules that govern the means and methods of warfare. "The Law of Geneva", or humanitarian law proper, referred to those rules "designed to safeguard military personnel who are not or no longer taking part in the fighting and persons not actively involved in hostilities, particularly civilians". See H Gasser, "Protection of the Civilian Population", in D Fleck ed, Handbook of Humanitarian Law in Armed Conflict (1995) 209, para 500. These two branches of IHL were never completely separate, and with the adoption of Protocol Additional to the Geneva Conventions of 12 Aug 1949, and relating to the Protection of Victims of International Armed Conflicts, adopted in 1977 (Protocol I), (1977) 16 ILM 1391 [hereinafter Protocol I] and Protocol Additional to the Geneva Conventions of 12 Aug 1949, and relating to the Protection of Victims of Non- international Armed Conflicts, adopted in 1977 (Protocol II), (1977) ILM 1442 [hereinafter Protocol II], which deal with both Hague and Geneva law, these terms are largely obsolete. For further discussion of this issue, see infra note 16.

53

54

International Humanitarian Law, Women and Armed Conflict

common with the civilian population,5 they enjoy the rules of IHL which provide protection against hostilities^ and when in the hands of an adverse party to the conflict.'7 As combatants they are covered to the same extent as men by the provisions relating to legitimate means and methods of combat, 8 and those in favour of prisoners of war,9 the wounded and the sick.10 Some of these rules are more relevant to women than others, as for example, the provisions on the right of families to know the fate of their missing relatives.11 Women are also the beneficiaries of "extra" protections in the form of provisions that are only applicable to them. All these additional requirements are located in the rules dealing with the protection of the victims of armed conflict. There are no special provisions in relation to women in the regime determining the legitimate conduct of hostilities.

5

6 7

8

9 10 11

The conventional definitions of "civilians" and "the civilian population" were not adopted until 1977. Art 50 Protocol I uses the existing definition of prisoners of war contained in the Geneva Convention relative to the Treatment of Prisoners of War of 12 Aug 1949 (75 UNTS 135) [hereinafter Third Geneva Convention] and the new definition of armed forces in Art 43 Protocol I, as the yardstick for the definition of civilians and the civilian population. See Art 4A(1), (2), (3), and (6) Third Geneva Convention (defining prisoners of war status) and Art 43 and 44 Protocol I (defining combatant and prisoner of war status). See for example, Part V Protocol I. See the further discussion infra note 85 and accompanying text and see, Gasser, supra note 4, at paras 501-598; and Green, supra note 1, at 220-233. See, for example, Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 Aug 1949 (75 UNTS 31) [hereinafter First Geneva Convention]; Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 Aug 1949 (75 UNTS 85) [hereinafter Second Geneva Convention]; Third Geneva Convention; and Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 Aug 1949 (75 UNTS 287) [hereinafter Fourth Geneva Convention]; Protocol I; and Protocol II. For a description of these rules, see Gasser, ibid; and Green, ibid. See for example, Convention (II) with Respect to the Laws and Customs of War on Land and annexed Regulations, signed at The Hague, 29 July 1899 and Convention (IV) with Respect to the Laws and Customs of War on Land, and annexed Regulations, signed at The Hague, 18 Oct 1907, (1910) 9 UKTS 5030 [hereinafter the Hague Regulations]. The Hague Peace Conferences of 1899 and 1907 adopted in total sixteen Conventions and four Declarations on a wide variety of topics. The two cited are the most relevant for this study. For a description of these rules, see S Oeter, "Methods and Means of Combat", in D Fleck ed, Handbook of Humanitarian Law in Armed Conflict (1995) 105, at paras 401-479; and Green, ibid, at 118-151. See for example, Third Geneva Convention; and see Green, ibid, at 118-206, for a description of these rules. See for example, First and Second Geneva Conventions; and see also Green, ibid, at 207-219, for a description of these rules. See for example, Arts 32-34 Protocol I; and see generally, ICRC, Waitingfor News: Restoration of Family Links (1996).

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The special provisions relating to women are the focus of this Chapter. We do, however, also provide an overview of several other aspects of the rules, to provide the basis for the discussion in Chapters 4 and 6 of the overall shortcomings of IHL in relation to women. The field of application of IHL, and the treaty provisions that require the equal application of IHL, are outlined. The significance of the family is acknowledged in various provisions of IHL, and these are identified. We also describe the major provisions of IHL dealing with the conduct of hostilities that are of particular application to the protection of civilian women, including a brief reference to the regulation of weapons. The most relevant treaty rules for the purposes of this work12 are found in the Hague Regulations on Land Warfare of 1899 and 1907, the 1929 Geneva Convention relative to the Treatment of Prisoners of War, and the four 1949 Geneva Conventions, and their 1977 Protocols. The majority of these conventional rules are also customary in nature. It is accepted that the Hague Regulations,^ the four 1949 Geneva Conventions1^ and many of the provisions of the Protocols, ^ represent customary international law. The issue of custom is particularly important in the context of non-international armed conflicts, for which there are only minimal treaty provisions. The international crimes of genocide and crimes against humanity, although not limited to times of armed conflict, have increasing potential to provide additional protection to women in times of armed conflict, and for this reason are included in this Chapter. Historically, redress for victims of armed conflict has not been a priority of the international community. There are signs of change. First, the punishment of individuals for crimes committed during armed conflict is of increasing significance. We outline the main features of international criminal law, both substantive and procedural, that are relevant to the particular experience of women arising from armed conflict. Secondly, the provision of compensation for losses

12 13

14

15

The IHL database of the ICRC contains some 91 treaties, see ICRC, . The International Military Tribunal at Nuremberg was of the view that the Hague Conventions, although an advance over existing international law at the time of their adoption, by 1939 had attained the status of custom. See, Trial of the major war criminals before the International Military Tribunal, Nuremberg, 14 November 1945-1 October 1946, Vol XXII (1947-1949) 49. See the view of the International Court of Justice in Legality of the Threat or Use of Nuclear Weapons Advisory Opinion, (1996) ICJ Reps 26 [hereinafter Nuclear Weapons Opinion] at paras. 79-82 and see R Clark, "Treaty and Custom", in L de Chazournes & P Sands eds, International Law, the International Court ofJustice and Nuclear Weapons (1999) 171 at 174-5. See ICRC, Study of Customary Rules of International Humanitarian Law (forthcoming 2001).

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International Humanitarian Law, Women and Armed Conflict

sustained as a result of armed conflict, although an undeveloped area of international law, is an issue of particular importance to women. We outline the existing framework for compensation for victims of armed conflict. The United Nations Compensation Commission (UNCC), a subsidiary body of the Security Council, has awarded compensation for victims of armed conflict, including women. The practice of the U N C C is discussed in Chapter 6.

2. Women and IHL - Early Developments The law of war, as it was formerly known, ^ is one of the most ancient components of the Law of Nations and the first rules of international law to be partially codified in the late nineteenth and early twentieth centuries. ^ Prior to this period, some of the earliest documents of the law of war recognised the need to provide protection for women. These provisions, however, were limited to the physical integrity of women, the related concept of their honour, and their role in the family. For example, Article XXIII of the Treaty of "Amity and Commerce" between the United States and Prussia 1785, stipulated that "[i]f war should arise between the two contracting parties... all women and children... shall not be molested in their persons."^ Article 2 of General Winfield Scott's General Orders No 20 of 19 February 1847, provided for the punishment of: Assassination; murder; malicious stabbing or maiming; rape; malicious assault and battery; robbery; theft; the wanton desecration of churches, cemeteries or other religious edifices and fixtures; and the destruction, except by order of a superior officer, of public or private property . . . ^

16

IHL is a relatively new term to describe this area of international law. During the period when war was accepted as a legitimate activity of States, the relevant rules of international law that controlled its conduct were referred to as the law of war. When, however, war was outlawed by the United Nations Charter, the law of war became known as the law of armed conflict. The term IHL has been widely adopted primarily at the instigation of the International Committee of the Red Cross (ICRC) and although initially confined to the four 1949 Geneva Conventions, it is now regarded as encompassing the entire law of armed conflict.

17 18

See Greenwood, supra note 2, at paras 114-129. Treaties, Conventions, International Acts, Protocols and Agreements between the US and Other Powers 1776-1909, vol2, (1910) 1477. Reproduced in ^nSirkhimer, Military Government and Martial Law (2nded 1904) Appendix 1, 581.

19

Women, Armed Conflict and International Law

57

The Lieber Code, drawn up in 1863 during the American Civil War, and one of the most influential of the earlier documents of the law of war,20 prescribed in Article XXXVII that: [t]he United States acknowledge and protect, in hostile countries occupied by them, religion and morality;... the persons of the inhabitants, especially those of women: and the sacredness of domestic relations. Offenses to the contrary shall be rigorously punished.. .2^ By Article XLIV of the Code: [a] 11 wanton violence committed against persons in the invaded country, ... all rape, wounding, maiming, or killing of such inhabitants, are prohibited under the penalty of death, or such other severe punishment as may seem adequate for the gravity of the offense ... and furthermore, Article XLVII specified that: [c] rimes punishable by all penal codes, such as arson, murder, maiming assaults, highway robbery, theft, burglary, fraud, forgery, and rape, if committed by an American soldier in a hostile country against its inhabitants, are not only punishable as at home, but in all cases in which death is not inflicted, the severer punishment shall be preferred. The Lieber Code was the basis of the work of the Brussels Conference of 1874 (which drew up the Brussels Declaration)22, and the Manual of the Laws and Customs of War on Land, drawn up by the Institute of International Law at its 1880 Oxford Conference (the Oxford Manual). 2 3 Although neither of these documents were legally binding they formed much of the basis of the Hague Conventions on Land Warfare and the annexed Regulations, adopted in 1899

20 21 22 23

See generally, B Carnahan, "Lincoln, Lieber and the Laws of War: The Origins and Limits of the Principle of Military Necesity", (1998) 92 AJIL 213 at 230. General Orders No 100, 24 Apr 1863 (Reproduced in L Friedman, The Law of War, A Documentary History, voll (1972) 158). Project of an International Declaration Concerning the Laws and Customs of War, 27 Aug 1874, reprinted in Friedman, ibid at 194. See Manual Published by the Institute of International Law (Oxford Manual) adopted by the Institute of International Law at Oxford, 9 Sep 1880 [hereinafter Oxford Manual]. See also Green, supra note 1, at 29-31 (for a description of the background to the Brussels Declaration and the Oxford Manual).

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and 1907 respectively.24 Article XXXVIII of the Brussels Declaration referred only to the need to respect "family honour and rights". The Oxford Manual contained the similar requirement that "family honour and rights, the lives of individuals, as well as their religious convictions and practice must be respected". 25 The Hague Regulations on Land Warfare of 1899 and 1907, repeated in Article XLVI, (common to both Regulations), the requirement of respect for family honour.2^ The Commission on the Responsibility of the authors of the War and on Enforcement of Penalties, 1919 (Versailles, March 1919), prepared a list of thirty two war crimes that included rape and the abduction of girls and women for the purpose of enforced prostitution. 27

3.

Modern IHL and Women

a.

Boundaries of IHL

The majority of the rules of IHL apply to international armed conflicts. The Hague Regulations do not contain any definition of the situations in which they are to apply. 2 8 From their very title and content it is clear that they apply in cases of wars between States. As the concept of war was familiar and well defined in international law at the stage of their adoption, the applicability of these rules was not an immediate problem. The four 1949 Geneva Conventions, recognising the influence of Article 2(4) of the United Nations Charter, and the reluctance of States to acknowledge the existence of war, by common Article 2 extend the coverage of the Conventions: "to all cases of declared war or of any other armed conflict... even if a state of war is not recognized by one of them" and "to all cases of partial or total occupation of the territory of the High Contracting Parties, even if the said occupation meets with no armed resistance".2^

24 25 26 27

28 29

See supra note 8. See Art 49 Oxford Manual, supra note 23. See supra note 8, Reprinted in (1920) \AAJIL 95. For details of rape as a crime against humanity in (Allied) Control Council Law No 10, 20 Dec 1945 (Official Gazette of the Control Council for Germany, No 3, 22) [hereinafter Control Council Law No 10], see infra Chapter 6 at notes 117 ff and accompanying text. See the Hague Regulations, supra note 8. By 1949 it was also accepted that the Hague Regulations, as a matter of practice, applied to all cases of armed conflict without any requirement as to recognition of war or belligerency. See, C Greenwood, "The Concept of War in Modern International Law", (1987) 36 ICLQ 283 at 295; and D Schindler, "State of War, Belligerency and Armed Conflict", in A Cassese ed, The New Humanitarian Law of Armed Conflict (1979) 3 at 4.

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There is still the issue as to the meaning of "armed conflict". It appears to be accepted that any difference between two States which results in the intervention of members of the armed forces comes within the scope of Article 2, subject to the requirement of a certain level of intensity. 3 0 Certain categories of wars of self-determination are treated as international in character for the purposes of the application of IHL. Article 1 (4) of Protocol I deems as international, "armed conflicts in which people are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations". In the context of non-international armed conflicts, the conventional rules establish three categories.31 First, there are those "armed conflicts not of an international character", that attract the operation of the "minicode" of common Article 3 to the four 1949 Geneva Conventions. State practice supports the view that conflicts must reach a considerable level of intensity before this Article becomes operative.32 Secondly, Protocol II, by Article I, applies to struggles "which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol." Protocol II is very limited in its application and is inapplicable to the majority of civil wars that occur in today's world. 33 Finally, there are situations of internal disturbances and tensions, which are outside the scope of IHL but are covered by the law of human rights. 34

30 31 32 33 34

See J Pictet et al. eds, Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1958) [hereinafter Commentary Fourth Geneva Convention] at 20. Cf M Bothe et al, New Rules for Victims of Armed Conflicts: Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of1949 (1982) 624. See E Kwakwa, The International Law of Armed Conflict. Personal and Material Fields of Application (1992) at 24 (discussing State practice in relation to common Art 3). For a discussion of this aspect of the Protocol, see S Junod, "Additional Protocol II: History and Scope", (1983) 33.4m ULR 29. The Preamble to Protocol II refers to the fact that international instruments relating to human rights already offer a basic protection to the human person. Such instruments include the Universal Declaration on Human Rights (1948), adopted by the General Assembly on 10 Dec 1948, GA Res 217A(III); the International Covenant on Economic, Social and Cultural Rights, adopted 16 Dec 1966 (993 UNTS 3); the International Covenant on Civil and Political Rights, adopted 16 Dec 1966 (999 UNTS 171); and the specialised conventions prepared by the United Nations and regional instruments.

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IHL generally ceases to apply on the close of hostilities.35 In the case of occupied territory, the Fourth Geneva Convention ceases to apply one year after the close of military operations.^ Protocol I abrogates this rule and substitutes the termination of the occupation as the date on which the Conventions and Protocol cease to apply.37 It is the protections offered by IHL to the civilian population that are the most relevant to women.'8 The members of the civilian population who are protected by the Fourth Geneva Convention are limited. The Convention provides some general protections for the whole of the population of the countries in conflict,^ but the majority of its provisions only apply during conflict or occupation, to "protected persons", that is, to persons who find themselves "in the hands of a Party to the conflict or the Occupying Power of which they are not nationals.40 Nationals of a State who are not a Party to the Convention and a State's own nationals do not enjoy the wider protections of the Convention. Neither do nationals of a neutral State, nor those of a co-belligerent State, "while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are."41 It appears that the conventional rules are substantially mirrored in the provisions of customary international law. However, the Rome Statute of the International Criminal Court does not adopt the terminology of Protocol II in determining the conflicts over which the Court has jurisdiction.42

35 36

37 38

39 40 41 42

See Art 5 First Geneva Convention, Art 5 Third Geneva Convention, Art 6 Fourth Geneva Convention, and Art 3 Protocol I. See Art 6 Fourth Geneva Convention. See, however, Art 6(3) Fourth Geneva Convention, in relation to prolonged military occupations. See generally, A Roberts, "Prolonged Military Occupation: The Israeli-Occupied Territories Since 1967", (1990) 84 AJIL 44. See Art 3 Protocol I. However, persons whose final release, repatriation, or re-establishment takes place after this period, remain protected by the Conventions and Protocol (see Art 3(b) Protocol I). For the persons covered by the, First, Second and Third Geneva Conventions, see Art 13 First Geneva Convention, Art 13 Second Geneva Convention, and Art 4 Third Geneva Convention. See also Art 9 First Geneva Convention, Art 68 Second Geneva Convention, Art 72 Third Geneva Convention, and Art 43 (definition of prisoner of war) and 50 (definition of the civilian population) Protocol I. See Pt II Fourth Geneva Convention and see Arts 68-72 Protocol I (dealing with relief in favour of the civilian population as defined in Art 50). See Art 4 Fourth Geneva Convention. See Art 4 Fourth Geneva Convention. Rome Statute of the International Criminal Court, UN Doc A/Conf.183/9 (17 July 1998) [hereinafter Statute of the ICC]. The Statute was adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court on 17 July 1998.

Women, Armed Conflict and International Law

b.

61

Equal Treatment

The four 1949 Geneva Conventions and the Protocols establish a system of equality in the sense that no adverse distinction can be drawn between individuals on the basis of, inter alia, sex.43 Differentiation on the basis of sex is thus permissible as long as its impact is favourable. The earliest example of such a provision is Article 4 of the 1929 Geneva Convention relative to the treatment of Prisoners of War, that reads: "[differences of treatment between prisoners are permissible only if such differences are based on the military rank, the state of physical or mental health, the professional abilities, or the sex of those who benefit from them". This theme of equality continues in the later conventional documents. For example, Article 12 of the Second Geneva Convention, states that "... persons shall be treated humanely and cared for by the Parties to the conflict in whose power they may be, without any adverse distinction founded on sex, race, nationality, religion, political opinions, or any other similar criteria". ^ The equality provisions in the Third Geneva Convention are somewhat more detailed and reflect the fact that differentiation between prisoners of war is allowed on a number of grounds. For example, Article 16 of the Third Geneva Convention, dealing with prisoners of war, reads: "taking into consideration the provisions of the present Convention relating to rank and sex, and subject to any privileged treatment which may be accorded to them by reason of their state of health, age or professional qualifications, all prisoners of war shall be treated alike by the Detaining Power, without any adverse distinction based on race, nationality, religious belief or political opinions, or any other distinction founded on similar criteria". The equality theme of the conventional rules is further reinforced in the context of the treatment of women prisoners of war. At the Conference of Government Experts, preceding the adoption of the four Geneva Conventions, it was thought that "much prejudice still remained which placed women on an inferior footing"^ The Third Geneva Convention, therefore, requires that female prisoners of war must be treated at least as favourably as male prisoners of war, irrespective of what might be the practices of the detaining power.4'' The

43 44

45 46

See F Krill, "The Protection of Women in International Humanitarian Law", (1985) 249 IRRC 337 at 339. See also Common Art 3 (for non-international armed conflicts), Art 12(2) First Geneva Convention; Art 2(2) Second Geneva Convention; Art 16 Third Geneva Convention; Arts 13 and 27(3) Fourth Geneva Convention; Arts 9(1), 69(1), 70(1), and 75(1) Protocol I; and Arts 2(1) and 4(1) Protocol II. See] Pictet etal. eds, Geneva Convention Relative to the Treatment of Prisoners ofV(ar(\960); [hereinafter Commentary Third Geneva Convention^ 146. See Art 14 Third Geneva Convention; and ibid, at 146-147.

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special provisions in relation to women then determine the level of the treatment which must be more "favourable". Additionally, by Article 88 of the Third Geneva Convention, a woman prisoner of war may not be "awarded or sentenced to a punishment more severe, or treated whilst undergoing punishment more severely, than a male member of the armed forces of the Detaining Power dealt with for a similar offence". In the context of non-international armed conflicts, Article 2(1) of Protocol II requires that the Protocol be applied without any adverse distinction on the basis of, inter alia, sex. c.

Special Protections for Women

There are provisions dealing specifically with women in all of the four 1949 Geneva Conventions and both the Protocols. The starting point of the system of special protection for women is the provisions that deal with the "regard" or "consideration due to women on account of their sex", and require that they be accorded special respect and protection. These provisions are described as having the purpose of preserving the "modesty" and "honour" or "weakness" of women. For example, the first modern conventional reference to women in Article 3 of the 1929 Geneva Convention Relative to the Treatment of Prisoners of War, requires that "[w]omen shall be treated with all consideration due to their sex". The Conventions and Protocols contain a number of provisions to the same effect.^7 The commentaries on these provisions give an indication of what is intended by such phrases. For example, in the context of Article 14 of the Third Geneva Convention, the phrase, "[wjomen shall be treated with all the regard due to their sex ...", has been described in the following terms: "[i]t is difficult to give any general definition of the 'regard' due to women. Certain points should, however, be borne in mind;...these points are the following: A. Weakness. - this will have a bearing on working conditions ... and possibly on food; B. Honour and modesty. - The main intention is to defend women prisoners against rape, forced prostitution and any form of indecent assault ... C. Pregnancy and child-birth. - If there are mothers with infants among the prisoners, they should be granted early repatriation ... women who have given birth should be repatriated with their child, while pregnant women should either enjoy special treatment, or, if their state of health permits, should also be repatriated. 47 48

See Art 12 First Geneva Convention, Art 12 Second Geneva Conventions, Art 14 Third Geneva Convention, and Art 76 Protocol I. Commentary Third Geneva Convention, supra note 45, at 147-148.

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A similar approach is taken in the context of Articles 12 of the First and Second Geneva Conventions: [t]he special consideration with which women must be treated is of course in addition to the safeguards embodied in the preceding paragraphs, to the benefits of which women are entitled equally with men. What special consideration? No doubt that accorded in every civilized country to beings who are weaker than oneself and whose honour and modesty call for respect. -* Standing alone, the provisions in relation to "regard", or "consideration" or "special respect", are statements of general principle and impose no concrete obligations. They are supplemented by more detailed rules, such as those mandating separate quarters and sanitary conveniences for women internees 50 and prisoners of war; those directly protecting women from sexual assault; and those dealing with pregnant women. 51 Overall the rules are designed to either reduce the vulnerability of women to sexual violence, to directly prohibit certain types of sexual violence, or to protect them when pregnant or as mothers of young children.52 (i) Separate quarters and conveniences for women prisoners of war and internees The four 1949 Geneva Conventions and the Protocols provide for separate quarters and facilities for women prisoners and those detained by the occupying power and, moreover, that they should be under the supervision of women. For example, Article 25 of the Third Geneva Convention requires that: "[i]n any camps in which women prisoners of war, as well as men, are accommodated, separate dormitories shall be provided for them",53and by Article 29: "[i]n any camps in which women prisoners of war are accommodated, separate conveniences shall be provided for them". 54 Article 97 of the Third Geneva Convention

48 49 50 51

52 53 54

Commentary Third Geneva Convention, supra note 45, at 147-148. See J Pictet et al. eds, Geneva Convention for the Amelioration of the Condition ofWounded, Sick and Shipwrecked Members of Armed Forces at Sea (I960) 92. Parties to the conflict may legitimately intern members of the civilian population in certain circumstances. See Arts 79-135 Fourth Geneva Convention. The link between the provision of separate quarters and the vulnerability of women to sexual violence, is made explicit in C Pilloud et al, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (1987) 1390. See Commentary Fourth Geneva Convention, supra note 30, at 385. See Commentary Third Geneva Convention, supra note 45, at 195; and see Art 75(1) and (5) Protocol I. See also Art 75(5) Protocol I (in relation to persons in the power of a party to the conflict).

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requires that: "[w]omen prisoners of war undergoing disciplinary punishment shall be confined in separate quarters from male prisoners of war and shall be under the immediate supervision of women".55 These provisions are described as in "accordance with the most elementary rules of decency",56 o r s o a s t o "protect the honour and modesty of women prisoners of war". 57 Similarly, Article 85 of the Fourth Geneva Convention requires separate quarters for women internees and is described as: "a particular application of the general principle laid down in Article 27, paragraph 2, concerning the respect due to women's honour."^ 8 In the context of non-international armed conflicts, Protocol II requires separate quarters for women internees or detainees, (unless accommodated as a family), and that they be under the immediate supervision of women.59 (ii) Protection against sexual assault The provisions dealing with sexual violence against women are also based on the specific application to them of the general notion of respect for the person, honour, and family rights. 60 Article 27(2) of the Fourth Geneva Convention is the first express conventional reference to rape and other forms of sexual mistreatment. It reads "[w]omen shall be especially protected against any attack of (sic) their honour, in particular against rape, enforced prostitution, or any form of indecent assault".61 These acts are described as incompatible with the honour, modesty and dignity of women. 62 Article 27(2) of the Fourth Geneva Convention is limited in its application.6^ It does not protect individuals from the activities of the State of which they are a national. Protocol I extends the scope of certain fundamental protections to all persons in the territory of a Party to the conflict. For example, Article 75(2) of the Protocol I prohibits "outrages upon personal dignity, in particular humiliating

55

56 57 58 59 60 61

62 63

See also Art 108 Third Geneva Convention (in relation to convicted prisoners of war); Art 76 Fourth Geneva Convention (in relation to protected persons); and Art 124 Fourth Geneva Convention (in relation to internees). See Commentary Third Geneva Convention, supra note 45, at 207. See ibid, at 462 ff. See Commentary Fourth Geneva Convention, supra note 30, at 388. See Art 5 para 2(a) Protocol II. See Commentary Fourth Geneva Convention, supra note 30, at 205. For a discussion of the background to the adoption of this Article see ibid, at 205-206. The Article was apparently based on a proposal submitted to the ICRC by the International Women's Congress and the international Federation of Abolitionists, ibid. See ibid, ar 206. See supra note 39 and accompanying text.

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and degrading treatment, enforced prostitution and any form of indecent assault", whether committed by military or civilian personnel. The protections offered by this article are applicable to both men and women and contemplate "acts which, without directly causing harm to the integrity and physical and mental well-being of persons, are aimed at humiliating and ridiculing them, or even forcing them to perform degrading acts."64 "Rape" is not expressly included in Article 75(2). However, Article 76 of Protocol I, dealing specifically with women and children, extends the protection in the Fourth Geneva Convention against rape, so as to include all women who are in the territory of Parties involved in the conflict.65 In the context of non-international armed conflicts, Article 4(2)(e) of Protocol II prohibits, in relation to "persons who do not take a direct part or who have ceased to take part in hostilities", "outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault".^ (iii) Pregnant women (expectant mothers) and maternity cases There is a range of provisions that deal with pregnant women, maternity cases, and mothers of children under seven years respectively. Throughout the conventional rules, these categories of women are equated with the wounded, sick and the aged,67 and enjoy particular protection and respect.^8 They are accorded special treatment in the context of such matters as medical care, foodstuffs, physical safety, and repatriation. Medical treatment By Article 91 of the Fourth Geneva Convention, [m]aternity cases ... suffering from serious diseases, or whose condition requires special treatment, a surgical operation or hospital care, must be admitted to any institution where adequate treatment can be given and shall receive care not inferior to that provided for the general population. ...

64 65 66 67 68

See Pilloud et al. eds, supra note 51, at 871-875. For the discussion of the expanded scope of this provision, see Bothe et al., supra note 31, at 469470. For the history of this article, see Pilloud et al. eds, supra note 51, at 1371-1376. "Expectant mothers are included as persons in a state of weakness which demands special consideration", see Commentary Fourth Geneva Convention, supra note 30, at 134. For example, Art 16 Fourth Geneva Convention reads: "[t]he wounded and sick, as well as the infirm, and expectant mothers, shall be the object of particular protection and respect". See also Arts 18, 20, 21, and 27 Fourth Geneva Convention and Art 12(1) First Geneva Convention.

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maternity cases shall not be transferred if the journey would be seriously detrimental to them, unless their safety imperatively so demands. -* Food There are several provisions designed to ensure the supply of foodstuffs (and other supplies) to pregnant women and nursing mothers. Article 23 of the Fourth Geneva Convention requires that Parties allow the free passage of essential foodstuffs, (and clothing and medicines) to expectant mothers and maternity cases. Detained "[ejxpectant and nursing mothers, and children under fifteen years of age, must be given additional food, in proportion to their physiological needs"7° Article 70 of Protocol I confers priority to the distribution of relief assignments, amongst others, on expectant mothers, maternity cases and nursing mothers. Physical safety Parties to the conflict are encouraged to adopt practices designed to ensure the physical safety of pregnant women. For example, Parties to the conflict may establish safety zones for pregnant women and mothers of small children. 71 Furthermore, in besieged and encircled areas, the Parties may attempt to conclude agreements for the evacuation of maternity cases.72 Priority in treatment, release, repatriation and accommodation in neutral countries By Article 76 (2) of Protocol I "[p] regnant women and mothers having dependent infants7^ who are arrested, detained or interned for reasons related to the armed conflict, shall have their cases considered with the utmost priority". Article 132 of the Fourth Geneva Convention requires Parties to the conflict to

69 70 71

72

73

Art 127 Fourth Geneva Convention. Art 89 Fourth Geneva Convention. See Art 14 Fourth Geneva Convention. Safety zones are "generally of a permanent character, established outside the combat zone in order to shelter certain categories of the civilian population, which, owing to their weakness, require special protection (... expectant mothers etc.)", Commentary Fourth Geneva Convention, supra note 30, at 120. See for example, Art 17 Fourth Geneva Convention and see also the following Articles of the Fourth Geneva Convention: Art 18 (relating to the protection of civilian hospitals caring, inter alia, fot maternity cases), Art 21 (relating to the protection of vehicles, trains, ships, etc conveying, inter alia, maternity cases), Art 22 (relating to the protection of aircraft temoving, inter alia, maternity cases). The Fourth Geneva Convention uses the category of children under the age of seven years. The standard in Art 76(2) is more flexible to take account of differences between individual cases and cultural discrepancies, see Bothe et al, supra note 31, at 471.

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attempt to reach agreements for the "release, the repatriation, the return to places of residence or the accommodation in a neutral country of certain classes of internees, in particular children, pregnant women and mothers with infants and young children, wounded and sick, and internees who have been detained for a long time". As Aliens and in Occupied Territories

There are provisions that ensure that pregnant women and mothers of children under seven, when aliens in the territory of a party to a dispute, are accorded the same preferential treatment as nationals of that State.74 Article 38 of the Fourth Geneva Convention requires that: "[c]hildren under fifteen years, pregnant women and mothers of children under seven years shall benefit by any preferential treatment to the same extent as the nationals of the State concerned". Moreover, by Article 50 of the Fourth Geneva Convention, the occupying power "shall not hinder the application of any preferential measures in regard to food, medical care and protection against the effects of war, which may have been adopted prior to the occupation in favour of... expectant mothers, and mothers of children under seven years."75 Pictet writes that preferential treatment "covers the whole body of provisions, normally promulgated in countries at war, for the benefit of persons whose weakness in one respect or another warrants special care. Measures ... .may be most varied in scope and application." They may include "the granting of supplementary ration cards, facilities for medical and hospital treatment, special welfare treatment, exemption from certain forms of work, protective measures against the effects of war, evacuation, transfer to a neutral country, admission to hospital and safety zones and localities etc".76 In the context of non-international armed conflicts, Article 6(4) of Protocol II prohibits the carrying out of the death sentence on pregnant women and mothers of young children. Penal Sanctions

Article 76(3) of Protocol I provides that: "[t]o the maximum extent feasible, the Parties to the conflict shall endeavour to avoid the pronouncement of the death penalty on pregnant women or mothers having dependent infants, for an offence

74 75

76

See Krill, supra note 43, at 342-343 (explaining the rationale for these provisions). This paragraph is an application of the general rule that "an Occupying Power, unless absolutely prevented, is bound to respect the laws in force in the occupied country." Commentary Fourth Geneva Convention, supra note 30, at 290. Ibid, at 248-249.

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International Humanitarian Law, Women and Armed Conflict

related to the armed conflict. The death penalty for such offences shall not be executed on such women". 77 d.

The Maintenance and Restoration of Family Ties

There are a number of provisions in the four 1949 Geneva Conventions and Protocol I that deal with the maintenance and restoration of family ties. Where a person has died while in the power of the opposing Party, there are certain obligations to forward documentation of importance to the next of kin to the other Party.78 Persons who are in the territory of a Party to the conflict, or in an occupied territory, or interned must be permitted to send personal news to family members. 79 Parties to the conflict are also under a duty to "facilitate" inquiries regarding the whereabouts of dispersed family members, and to "encourage" the work of organisations involved with family tracing. 80 Protocol I specifies that families have a right "to know the fate of their relatives"81 and that Parties are obliged to search, and facilitate searches for missing persons 82 and to "facilitate in every possible way" the reunion of families, and the work of organisations involved in this task.8^ Finally, Protocol I obliges Parties to "facilitate the return of the remains of the deceased and of personal property", if requested by the next of kin, unless the home country objects.8^ e.

General Protection of the Civilian Population against the Effects of Hostilities

(i) International armed conflicts As most women experience armed conflict as civilians, the principle of IHL that has the most potential to protect them during the actual conduct of hostilities, is that of non-combatant immunity.8^ Abstractly stated, the norm requires

77 78 79 80 81 82 83 84 85

For a discussion of the background to this provision, see Pilloud et al. eds, supra note 51, at 893896; and Bothe et al. eds, supra note 31, at 470-473. See Art 16 First Geneva Convention, Art 19 Second Geneva Convention. See Arts 25, 106, 107 Fourth Geneva Convention. See Art 26 Fourth Geneva Convention. See Art 32 Protocol I. See Art 33 Protocol I. See Art 74 Protocol I. See Art 34(2) (c) Protocol I. For a general study of the principle of non-combatant immunity in the law of armed conflict, see J Gardam, Non-Combatant Immunity as a Norm of International Humanitarian Law (1992); and see generally G Best, War and Law Since 1945 (1994).

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parties to an armed conflict to distinguish at all times between civilians and combatants and between civilian and military objects, and to direct their operations only against the latter. By the beginning of the twentieth century it was accepted in a general sense that civilians were not legitimate objects of attack.8^ It was not until 1977, with the adoption of Protocol I regulating international armed conflicts, however, that detailed rules were provided to ensure the implementation of the somewhat abstract nature of non-combatant immunity, and to protect civilians against the effect of hostilities.8? Article 48 of Protocol I codifies the customary rule that "[p]arties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives."88 The broad formulation of the rule in Article 48 is not sufficient to provide adequate protection for civilians from the effects of hostilities. For example, even if the Parties to the conflict comply with Article 48 and confine attacks to military objectives, the damage to collateral civilian targets may be of an unacceptable level. The basic rule in Article 48, therefore, is supplemented by specific rules in Articles 51 and 57 designed to spell out how the level of damage to the civilian population and civilian objects is to be contained. Article 51 prohibits direct attacks on civilians; "[a]cts or threats of violence the primary purpose of which is to spread terror among the civilian population"; and reprisals against the civilian population.89 Perhaps the most significant aspect of the 1977 conventional rules protecting civilians against the means and methods of combat, is the prohibition of indiscriminate attacks, so as to limit collateral civilian casualties. Indiscriminate attacks are: "those which are not directed at a specific military objective; or which employ a method or means of combat which cannot be directed at a specific military objective"; or "which employ a method or means of combat the effects of which cannot be limited as required by this Protocol; and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction".90

86 87 88 89 90

See Gardam, ibid, at 16-20; and Best, ibid, at 26-44. See Arts 48-58 Protocol I. For a discussion of the travaux preparatoires to this provision, see Gardam, supra note 85, at 46-47. See Art 51 (2) and (6) Protocol I. See Art 51(4) Protocol I. The other requirements of the Protocol, referred to in Art 51(4)(c), are the rules relating to the natural environment in Arts 35(3) and 55, and the limitations on attacks on military objectives located on or near dams, dykes and nuclear power stations in Art 56.

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Article 51 (5) provides examples of attacks that are to be considered as indiscriminate and includes91 the first conventional articulation of the rule of proportionality: namely it is prohibited to launch "an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated".9^ Therefore, an attack which may be expected to cause excessive civilian casualties is prohibited. The Article provides an objective test. The prohibition is against an attack which "may be expected to cause" excessive civilian losses rather than whether it is subjectively expected to do so. However, the determination of what attacks will fall within this prohibition is obviously a subjective one and will often be difficult to determine.9^ The Protocol also prohibits the deliberate use of civilians or the civilian population as a shield for military operations. 94 Various other obligations are placed on Parties to the conflict to protect civilians, such as the taking of precautions in the placing or location of civilians or civilian objects in the vicinity of military objectives,9^ and the use of civilians or the civilian population to shield military objectives.9^ The majority of these requirements in relation to the protection of civilians are also customary in nature, although there is significant disagreement as to the correct interpretation of the prohibition against indiscriminate attacks in Article 51(5)(b).97

91

92

93

94 95

96 97

Also regarded as indiscriminate within the meaning of the Protocol, is an "attack by bombardment by any method or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects", see Art 51(5)(a). See Art 51 (5)(b). For a discussion of the rule of proportionality in IHL, see J Gardam, "Proportionality and Force in International Law", (1993) 87 AJIL 391; W Fenrick, "The Rule of Proportionality and Protocol I in Conventional Warfare", (1982) 98 MilLR 91; and id, "Attacking the Enemy Civilian as a Punishable Offense", (1997) 7 Duke J Comp & Int'l L 539. See also Art 57 para 2(a)(iii) & (b) (requiring decision makers to refrain from launching an indiscriminate attack or to cancel, or suspend an attack, if it becomes apparent that it will infringe Art 51 (5) (b)). This article has attracted criticism from the military, particularly as to the meaning to be attributed to such phrases as "concrete and direct military advantage anticipated". For example, see W Hays Parks, "Conventional Aerial Bombing and the Law of War", (1983) Proceedings Naval War Review 98 at 168 ff. See Art 51 (7) Protocol I. See Art 58(b) Protocol I, and see generally Arts 57 and 58 Protocol I (detailing the obligations on Parties to the conflict to take precautionary measures in relation to protecting the civilian population from attacks on military objectives). See also, for example, Art 18 Fourth Geneva Convention, and Art 12(4) Protocol I (relating to the siting of hospitals and medical units). See Art 51(7) Protocol I. See Gardam, supra note 85, at 142-162. See also ICRC, Study on Customary Rules of International Humanitarian Law, supra note 15-

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(ii) Non-international armed conflicts The treaty rules restraining the means and methods of combat in non-international armed conflicts in order to protect civilians are very limited. Article 13 of Protocol II confers general protection on the civilian population against the effects of military operations, and specifically prohibits the direct targeting of civilians, or the use of acts or threats of violence to terrorise the civilian population. Unlike Protocol I, Protocol II contains no specific limitations on the means and methods of combat. There is no prohibition against indiscriminate attacks or any requirement as to proportionality, no prohibition on the civilian population being used as a shield against military operations, and no prohibition against reprisals. The provisions of Protocol II, however, appear to have been supplemented in recent times by customary principles that arguably provide more protection for the civilian population in a wider range of conflicts.^8 f.

Regulation of weapons

The issue of weapons in armed conflict has three aspects, some of which are within the province of IHL, but others of which fall under the rubric of disarmament. 99 First, there is the question of what weapons are legitimate in armed conflict. The basic principle of IHL on which the regulation of weaponry is based, is the prohibition of weapons causing unnecessary suffering and superfluous injury to combatants. 100 Secondly, the use of legitimate weapons is regulated by the prohibition

98

99

The existence of customary norms regulating civil conflicts was once doubted. Nowadays, few commentators would deny the existence of such norms and would acknowledge that they have more to offer than the existing treaty provisions. See also Art 8 Statute of the ICC (criminalising a variety of acts committed against the civilian population in Protocol II type non-international armed conflicts). The ICRC is somewhat ambivalent in its approach to weapons controls. Its traditional mandate related to the protection of victims of armed conflict in the narrow sense (the Law of Geneva), rather than the means and methods of combat (the Law of The Hague). Even when the ICRC expanded its role to incorporate the means and methods of warfare, the primary focus of its efforts remained on the need to protect civilians against their indiscriminate use. The issue of banning specific weapons directly raises strategic considerations, that are considered more appropriate to disarmament fora. For an analysis of the approach of the ICRC to the issue of the regulation of weapons in armed conflict, see F Kalshoven, "Arms, Armaments and International Law", (1985) II Recueildes Cours 183 at 225-250.

100 It is doubtful whether any weapons are illegal per se on the basis of this principle. The outlawing of weapons has occurred primarily through treaties relating to specific weapons. For a discussion of modern IHL and the means of warfare, see Oeter, supra note 8, at 105-153; Green, supra note 1, at 118-138.

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on indiscriminate attacks against civilians, described above. 101 Finally, there is the issue of the further regulation of weapons through such means as constraints on their proliferation, and questions of disarmament generally. These areas are not governed by IHL. g.

War Crimes

IHL is one of the few areas of international law that imposes criminal liability on individuals for the breach of its provisions. 102 Although it is clear that "war crimes" entail individual criminal responsibility, some confusion surrounds the meaning of the term. 103 While war crimes have been broadly defined as

101 Any limitations on the use of legitimate weapons in the context of combatants is governed by the requirements of proportionality in the law on the use of force. See for example, C Greenwood, "Ius ad bellum and ius in bello in the Nuclear Weapons Advisory Opinion", in L de Chazournes & P Sands eds, International Law, the International Court of Justice and Nuclear Weapons (1999) 247 at 257-258. 102 The principle of individual criminal responsibility for war crimes, (and crimes against humanity), was established beyond doubt by the International Military Tribunal, at Nuremberg. Following World War II, the four major allied States, the United States of America, Britain, France and the U.S.S.R, agreed to establish an International Military Tribunal "for the trial of war criminals whose offences have no particular geographical location". (Art 1 of the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis Signed at London 8 August 1945 (82 UNTS 279)) [hereinafter Nuremberg Charter and Nuremberg Tribunal]. The agreement was subsequently adhered to by 19 other States. Art 6 of the Nuremberg Charter conferred jurisdiction over three categories of crimes on the Nuremberg Tribunal, namely crimes against peace, war crimes and crimes against humanity. In its Judgment, the Nuremberg Tribunal affirmed that individuals could be punished for the crimes within its jurisdiction, including war crimes and crimes against humanity. See Judgment ofthe Nuremberg International Military Tribunal, 1946, (1947) 41 AJIL 172. See also Art 7 of the Annex to the Secretary-General's Report on Aspects of Establishing an International Tribunalfor the Prosecution ofPersons Responsible for Serious Violations ofInternational Humanitarian Law Committed in the Territory of the Former Yugoslavia (Report of the SecretaryGeneral Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), UN Doc S/25704 (1993) as amended 13 May 1998 [hereinafter Statute of the ICTY]; Art 6 Statute of the International Criminal Tribunal for Rwanda, UN Doc S/RES/955 (8 Nov 1994), Annex [hereinafter Statute of the ICTR]; and Art 25 Statute of the ICC which embody the principle of individual criminal responsibility. See generally, E Greppi, "The Evolution of Individual Criminal Responsibility Under International Law", (1999) 81 IRRCbil. 103 See the definition proposed by Fenrick, who describes a war crime as: "(a) one of a list of acts generally prohibited by treaty but occasionally prohibited by customary law ... (b) committed during an armed conflict ... (c) by a perpetrator linked to one side of the conflict, and (d) against a victim who is neutral or linked to the other side of the conflict." W Fenrick, "Should Crimes against Humanity Replace War Crimes?", (1999) 37 ColJTL 767 at 771. For the historical development of war crimes, see L Sunga, The Emerging System of International Criminal Law: Developments in Codification and Implementation (1997) 163-172.

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"violations of the laws and customs of war", not all transgressions of IHL result in criminal responsibility.104 In order to constitute a war crime the act in question must not only be prohibited by the conventional or customary rules of IHL, but must also reach a certain level of "seriousness". For example, the failure to provide certain goods, such as soap, in a canteen for purchase by civilian internees,10^ or by prisoners of war,10^ are cited as examples of acts that, although prohibited by IHL, would not be sufficiently serious to constitute war crimes. 10 ^ There are a number of conventional instruments, the breach of which constitute war crimes. 108 For the purposes of this study on women however, the most relevant of these are the four 1949 Geneva Conventions and the Additional Protocols. (i) War crimes and international armed conflicts The four Geneva Conventions of 1949 and Protocol I that regulate international armed conflicts employ a system of "grave breaches" to identify those breaches of IHL considered most serious.10^ It is clear that "grave breaches" of the four Geneva Conventions entail individual criminal responsibility, although the term "war crime" is not generally used. 110 States have a duty to enact legislation to provide effective penal sanctions for persons committing grave breaches of the conventional provisions, as well as persons who have ordered the commission of grave breaches.J J * State Parties also

104 See Y Dinstein, "The Distinctions Between War Crimes and Crimes against Peace", in Y Dinstein & M Tabory eds, War Crimes in International Law (1996) 1 at 3; G Draper, "The Modern Pattern of War Criminality", in Y Dinstein & M. Tabory eds, War Crimes in International Law (1996) 141 at 156. See also YSandoz, "Penal Aspects of International Humanitarian Law", in Bassiouni, supra note 2, 209 at 225. 105 See Art 87 Fourth Geneva Convention. 106 See Art 28 Third Geneva Convention. 107 See Dinstein, supra note 104, at 4 (in relation to Art 28 Third Geneva Convention); and Sandoz, supra note 104, at 225 (in relation to Art 87 Fourth Geneva Convention). For a critical examination of the "seriousness" requirement, see the further discussion infra Chapter 6, notes 39 ff and accompanying text. 108 For a list of these instruments, see Pilloud et al. eds, supra note 51, at 978. 109 See Arts 49, 50 First Geneva Convention, Arts 50, 51 Second Geneva Convention, Arts 129, 130 Third Geneva Convention, Arts 146, 147 Fourth Geneva Convention, and Arts 85 and 86 Protocol I. 110 Draper points out that the term "war crime" appears only once in the 417 articles that comprise the four Geneva Conventions of 1949. See Draper, supra note 104, at 157. However, by Art 85(5) Protocol I, grave breaches of the Conventions and Protocols are designated as war crimes. 111 See Art 49 First Geneva Convention, Art 50 Second Geneva Convention, Art 129 Third Geneva Convention, and Art 146 Fourth Geneva Convention. By Art 85(1) Protocol I, State parties are under the same obligations regarding the repression of grave breaches in Protocol I, as those arising under the four Geneva Conventions.

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have a duty to actively search for those who are alleged to have committed grave breaches and, if found within their territory, to bring them before their courts, or alternatively, to extradite them for prosecution. 112 The Conventions impose a positive obligation on States to exercise jurisdiction over persons committing grave breaches,1 ^ and no State is permitted to absolve itself, or any other State, of liability incurred with respect to grave breaches.11^ Of the four 1949 Geneva Conventions, the Fourth Geneva Convention protecting civilians, is of the most potential relevance to women because of its coverage and the number of special provisions relating to women. The following acts are designated as grave breaches in the Convention, if they have been committed against persons protected by the Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or wilfully depriving a protected person of the rights of fair and regular trial prescribed in the [Fourth Geneva] Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.1 ^ There is no express reference to acts specifically affecting women. 1 ^ Protocol I incorporates and extends the system of grave breaches contained in the Geneva Conventions. Sexual violence is not expressly referred to in the expanded list of grave breaches in the Protocol. However, crimes involving the means and methods of combat in relation to the civilian population are included in the list of grave breaches and are potentially relevant to the experience of women of armed conflict.1 ^ These offences include making the civilian population or individual

112 See Art 49 First Geneva Convention, Art 50 Second Geneva Convention, Art 129 Third Geneva Convention, and Art 146 Fourth Geneva Convention. See also O Uhler, Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1958) 590-596. 113 See T Meron, "International Criminalization of Internal Atrocities", (1995) 89 AJIL 554 at 569. 114 See Art 51 First Geneva Convention, Art 52 Second Geneva Convention, Art 131 Third Geneva Convention, and Art 148 Fourth Geneva Convention. 115 See Art 147 Fourth Geneva Convention. The scope of the Fourth Geneva Convention is limited, see supra note 39 and accompanying text. 116 See, however, the discussion on re-interpretations of grave breach provisions to include crimes of sexual violence infra Chapter 6. 117 See Art 85 Protocol I. For a discussion of this aspect of Protocol I, see Draper, supra note 104, at 166-181.

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civilians the object of attack, and "launching an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects".118 Furthermore, Article 85(4) of Protocol I, for the first time, designates certain prohibited transfers of the civilian population as grave breaches, "when committed wilfully and in violation of the Conventions or the Protocol." Breaches of the Conventions and Protocol I that are not listed as grave breaches, but that nonetheless reach an accepted level of "seriousness", may still constitute war crimes.1 ^ However, in respect of non-grave breaches, the Geneva Conventions impose upon States the less rigorous duty to take measures necessary to "suppress" those breaches. 120 The Rome Statute of the International Criminal Court, 121 defines war crimes in international armed conflicts, as not only grave breaches of the 1949 Geneva Conventions, but certain "[o]ther serious violations of the laws and customs applicable in international armed conflict ..." 1 2 2 Included within this list are certain offences involving women, namely: "rape, sexual slavery, enforced prostitution, forced pregnancy", 123 ... "enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions". 12 ^ Also of potential relevance to the prosecution of sexual violence against women is the crime of "committing outrages upon personal dignity, in particular humiliating and degrading treatment". 125 Certain means and

118 See Art 85(3) Protocol I. 119 See for example, Dinstein, supra note 104, at 4. The Statute of the ICTY provides an example of the practical application of this principle. Pursuant to Article 3, the Tribunal has jurisdiction over violations of the laws and customs of war, which have been defined as all violations of customary IHL, other than "grave breaches", provided they are "serious". See Prosecutor v Tadic, 1995 Case No IT-94-1, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (2 Oct 1995) para 94. 120 See Art 49 First Geneva Convention, Art 50 Second Geneva Convention, Art 129 Third Geneva Conventions, and Art 146 Fourth Geneva Convention. See also Meron, supra note 113, at 566 (arguing that universal jurisdiction may also arise in respect of non-grave breaches. The difference is that grave breaches entail an obligation to prosecute, whereas other violations may simply give rise to a right to prosecute). 121 Supra note 42. 122 See Art 8 (2) Statute of the ICC. 123 "Forced pregnancy" is defined in Art 7(f) Statute of the ICC as "the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. This definition shall not in any way be interpreted as affecting national laws relating to pregnancy." 124 See Art 8 (2) (b) (xxii) Statute of the ICC. 125 See Art 8(2)(b)(xxi) Stature of the ICC. See the discussion of the jurisprudence of the ICTY and the ICTR on this point infra Chapter 6, notes 198 ff and accompanying text.

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methods of warfare that affect women as civilians are included within the jurisdiction of the Court, namely: the intentional targeting of civilian and civilian objects;12^ the launching of indiscriminate attacks within the meaning of Article 51 of Protocol I;12'7 and attacking or bombarding undefended non-military localities.128 Other actions that frequently involve women are designated as criminal by the Statute, namely: the "transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory"; 129 "[sjubjecting persons who are in the power of an adverse party to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons"; 1 ^ "[kjilling or wounding treacherously individuals belonging to the hostile nation or army";1^1 "[utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations"; 132 "[ijntentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions"; 133 and "[p]illaging a town or place, even when taken by assault".134 (ii) War crimes and non-international armed conflicts Traditionally, war crimes were considered to arise only from breaches of the law committed during international armed conflict.135 Common Article 3 to the Geneva Conventions, relating to non-international armed conflicts, is not included in the grave breach provisions of the Conventions, and Protocol II contains no provisions on grave breaches. However, State practice in recent years has established that certain breaches of the laws regulating non-international armed

126 127 128 129 130 131 132 133 134 135

See Art 8(2) (b) (i) and (ii) Statute of the ICC. See Art 8(2) (b) (iv) Statute of the ICC. See Art 8(2)(b)(v) Statute of the ICC. See Art 8(2) (b) (viii) Statute of the ICC. See Art 8(2) (b) (x) Statute of the ICC. See Art 8(2)(b)(xi) Statute of the ICC. See Art 8(2) (b) (xxiii) Statute of the ICC. See Art 8(2)(b)(xxv) Statute of the ICC. See Art 8(2)(b)(xvi) Statute of the ICC. See D Plattner, "The Penal Repression of Violations of International Humanitarian Lav Applicable in Non-international Armed Conflicts", (1990) 278 IRRC 409 at 414.

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conflicts constitute war crimes that attract individual criminal responsibility.1^ These developments, that commenced with the Statute of the ICTR,1^7 are reflected in the jurisprudence of the ICTR and the ICTY,138 and confirmed in the Statute of the ICC. Article 4 of the Statute of the ICTR criminalises "serious violations of Article 3 common to the Geneva Conventions and of Additional Protocol II", including "outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault". The Statute of the ICC criminalises certain serious violations of Common Article 3 of the Geneva Conventions, namely; "violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture"; 1 ^ "committing outrages upon personal dignity, including humiliating and degrading treatment";140 and "the taking of hostages".141 In non-international armed conflicts "that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups",142 the following acts, to which women are particularly vulnerable, are criminalised: " [i] ntentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities";143 "[pjillaging a town or place, even when taken by assault";144 "[c]ommitting rape, sexual slavery, enforced prostitution, forced pregnancy.. .enforced sterilization, and any other form of sexual violence also constituting a serious violation of article 3 common to the four Geneva Conventions";14^ "[o]rdering the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand";14^ "[sjubjecting persons who are in the power of another party to the conflict to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or

136 For a general discussion of this development, see Meron, supra note 113; and V Morris & M Scharf, International Criminal Tribunalfor Rwanda, voll (1998) 128-132. 137 See UN Doc S/RES/955 (8 Nov 1994) Annex. 138 See for example, Prosecutor v Tadic, supra note 119 (confirming the criminalisation of internal atrocities.) 139 See Art 8(2)(c)(i) Statute of the ICC. 140 See Art 8(2)(c)(ii) Statute of the ICC. 141 See Art 8(2)(c)(iii) Statute of the ICC. 142 See Art 8(2)(e) Statute of the ICC. 143 See Art 8 (2) (e) (i) Statute of the ICC. 144 See Art 8 (2) (e) (v) Statute of the ICC 145 See Art 8(2)(e)(vi) Statute of the ICC. 146 See Art 8 (2) (e) (viii) Statute of the ICC.

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hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons". 1 ^ h.

Crimes against Humanity and Genocide

Traditionally, crimes against humanity and genocide have not been regarded as part of IHL. Increasingly, however, they are an important part of the protections available to all victims of armed conflict, including women. This is particularly so in light of the high profile these crimes have assumed in developments concerning the ICTY, the ICTR, and the ICC. 1 4 8 (i) Crimes against humanity The first concrete formulation of "crimes against humanity" is contained in the Nuremberg Charter, although the origins of the principle can be traced to much earlier times.149 I n 1945, when the Nuremberg Charter was drafted, the atrocities committed by the Germans against their own nationals were amongst the actions the international community sought to address.150 The concept of crimes against humanity was included in the Nuremberg Charter to ensure the punishment of certain acts committed against persons of the same nationality as the perpetrator, ^ l The Nuremberg Tribunal had jurisdiction over, inter alia: Crimes against humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated. 52

147 See Art 8(2)(e)(xi) Statute of the ICC. 148 Jurisdiction over crimes against humanity is established by Art 5 Statute of the ICTY, Art 3 Statute of the ICTR, and Art 7 Statute of the ICC. Jurisdiction over genocide is established by Art 4 of the Statute of the ICTY, Art 2 Statute of the ICTR, and Art 6 Statute of the ICC. See the further discussion of these crimes in the context of the ICTY, ICTR and ICC infra Chapter 6. 149 For a discussion of the history of the principle, see generally, Bassiouni, supra note 2. 150 See ibid, at 179. 151 See ibid, at 177 and 179. 152 See Art 6(c) Nuremberg Charter.

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A nexus between "crimes against humanity" and war was required by the Nuremberg Charter, and the acts prohibited were directly analogous to the types of acts "falling within the traditional meaning of war crimes".'53 ~pOS{ Nuremberg Charter developments, however, suggest that the connection with war is no longer a requirement of crimes against humanity. 1 ^ Furthermore, although not always expressly stated in instruments referring to crimes against humanity, the requirement that the acts be carried out as part of a "widespread" or "systematic" campaign against a civilian population is now accepted as an integral element of the offence. J55 The Nuremberg formulation of crimes against humanity makes no express reference to women, or to the types of crimes that are likely to specifically affect women.'56 By contrast, the formulation of crimes against humanity in Article II (l)(c) of Control Council Law No 10, which was subsequently enacted by the Allied Control Council for Germany as the basis for the trial of non-major war criminals following World War II, did expressly incorporate rape. It covered: Atrocities and offences, including but not limited to murder, extermination, enslavement, deportation, imprisonment, torture, rape, or other inhumane acts committed against any civilian population, or persecutions on political, racial or religious grounds whether or not in violation of the domestic laws of the country where perpetrated.'57

153 See Bassiouni, supra note 2, at 24, 177-178 and 185. See also E Schwelb, "Crimes Against Humanity", (1946) 23 Brit YB Int'lL 178 at 191; and M Lippman, "Crimes Against Humanity", (1997) 17 Boston C Third World LJ 171 at 188. 154 While the nexus with war has been retained in Art 5 Statute of the ICTY, dealing with crimes against humanity, it does not appear in the relevant articles of the Statute of the ICTR, or the Statute of the ICC. Many commentators now regard the nexus as inapplicable. See for example, Bassiouni, ibid, at 191; and Fenrick, supra note 103, at 778. For an overview of developments regarding the war nexus requirement, particularly in the context of the jurisprudence of the ICTY, see B van Schaack, "The Definition of Crimes against Humanity: Resolving the Incoherence", (1999) 37 Col/TL 787. 155 See for example, Prosecutor v Tadic, supra note 119, at para 646-647. See also Art 3 Statute of the ICTR; and Art 7 Statute of the ICC, which both expressly incorporate the element of a "widespread" or "systematic" attack. 156 See, however, the discussion infra Chapter 6 notes 173 ff and accompanying text. 157 Control Council Law No 10, supra note 27.

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However, the formulation of crimes against humanity in the Charter of the International Military Tribunal for the Far East subsequently omitted an express reference to rape.1^8 None of the formulations of crimes against humanity contained in the Nuremberg Charter, Control Council Law No. 10, or the Tokyo Charter, recognised persecution carried out solely on the basis of gender. In the period subsequent to the post-World War II war crimes trials, the crimes against humanity principle has been considered and re-formulated in various international fora.J 59 The Statute of the ICTY is the first time that a gender perspective has been expressly included. Article 5(g) of the Statute of the ICTY confers on the Tribunal the power to prosecute persons responsible for, inter alia, rape "when committed in armed conflict, whether international or internal in character, and directed against any civilian population". Article 3 of the Statute of the ICTR dealing with crimes against humanity is similar to Article 5 of the Statute of the ICTY, in that it expressly refers to rape.160 The Statute of the ICC extends the reference to gender crimes by defining crimes against humanity to include "rape, sexual slavery, enforced prostitution, enforced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity", provided these crimes are "committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack".161 The Statute of the ICC further specifies that the term

158 See Art 5(c) of the Charter of the International Military Tribunal for the Far East, annexed to the Special Proclamation by the Supreme Commander for the Allied Powers at Tokyo, 19 Jan 1946, TIAS No 1589, 4 Bevans 20 [hereinafter Tokyo Charter]. On the Tokyo Tribunal generally, see R Minear, Victors' Justice. The Tokyo War Crimes Trial (1971); and C Hosoya, The Tokyo War Crimes Trial: An International Symposium (1986). 159 In addition to the Statutes of the ICTY, ICTR and ICC discussed infra, see for example, the work of the ILC on Principles of International haw Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal, 29 July 1950, 5 UN GAORSupp (No 12) 11, UN Doc A/1316 (1950); and the Draft Code ofOffences Against the Peace andSecurity ofMankind [t\ie topic was initially formulated as a Draft Code of Offences Against the Peace and Security of Mankind, but was changed in 1987 to the Draft Code of Crimes Against the Peace and Security of Mankind). On the work of the ILC generally on this topic, see Bassiouni, supra note 2, at 470-527. 160 However, Art 3 Statute of the ICTR differs from Art 5 Statute of the ICTY in several important respects. First, it expressly includes the requirement that the acts must form part of a "widespread or systematic attack", which is not expressly mentioned in Art 5 Statute of the ICTY. Secondly, it introduces the requirement that the attacks must be motivated by "national, political, ethnical, racial or religious grounds", which is not required by Art 5 Statute of the ICTY. In the Nuremberg Charter and the Tokyo Charter, the requirement regarding discriminatory intent was related only to the crime of persecution. For a full account of these issues see van Schaack, supra note 154. 161 See Art 7( 1) (g) Statute of the ICC.

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"enslavement" should be interpreted in a manner that takes account of the particular experiences of women.1(^2 Finally, the Statute of the ICC includes gender as one of the discriminatory grounds for the crime of persecution. 3 (ii) The Genocide Convention The Genocide Convention 1 ^ was adopted in response to the acts perpetrated by the Third Reich during World War II, and sought to name the crime of genocide, identify its characteristics, and take steps to prevent and punish it. lf>5 Genocide is defined in Article II of the Convention as: any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: a. Killing members of the group; b. Causing serious bodily or mental harm to members of the group; c. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; d. Imposing measures intended to prevent births within the group; e. Forcibly transferring children of the group to another group. In addition to genocide, the Convention also covers conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide, and complicity in genocide. 1 ^ It is not necessary to establish that an armed conflict exists, in order for the Genocide Convention to apply. ^ 7

162 By Art 7 para 2(c) "[e]nslavement" means the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children. 163 By Art 7 para (3), for the purposes of the Statute, gender "refers to the two sexes, male and female, within the context of society. The term "gender" does not indicate any meaning different from the above." 164 The Convention on the Prevention and Punishment of the Crime of Genocide, 1948 (78 UNTS 277) [hereinafter Genocide Convention] was approved and opened for signature, ratification, and accession by the UN General Assembly in December 1948. See UNGA Res 260 A(III), 9 Dec 1948. 165 See generally N Robinson, The Genocide Convention: A Commentary (1960); and M Lippman, "The 1948 Genocide Convention on the Prevention and Punishment of the Crime of GenocideForty Five Years Later" (1994) 8 Temp Int'l Comp LJ 1; and Sunga, supra note 103, at 103-119. The phrase "genocide" was coined by Raphael Lemkin. See R Lemkin, Axis Rule in Occupied Europe (1944). 166 See Art 3 Genocide Convention. 167 See Art 1 Genocide Convention.

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Genocide is a specific example of the broader category of crimes against humanity. It is distinguished from other crimes against humanity by the presence of a specific intent to destroy the specified group in whole or in part. Article 2(a)(e) of the Genocide Convention is an exhaustive list of acts that qualify as genocide. 1 ^ 8 The list appears to have been drawn from crimes identified by the Commission on the Responsibility of the Authors of the War and on the Enforcement of Penalties, which was established following World War I. 1 ® Generally speaking, the distinctive ways in which women experience genocide are not expressly reflected in the Genocide Convention, although Article II(d) is concerned with practices that may particularly affect women in their reproductive capacity.17^ Furthermore, the definition of genocide contained in the Convention is linked to attacks on a "national, ethnical, racial or religious" group. The Convention does not expressly cover the targeting of women solely on the basis of their gender. 171 The Statute of the ICC includes the crime of genocide within the jurisdiction of the Court, and adopts, verbatim, the definition of the crime contained in the Genocide Convention. 172 However, the work of the Preparatory Commission of the International Criminal Court 173 specifically acknowledges that, in certain circumstances, sexual violence may fall within the definition of genocide.17^

168 During the negotiation of the Convention, a proposal by the Chinese delegation to make the list non-exhaustive was rejected. See Proceeding of the Sixth Committee, UN GAOR 6th Comm, 3rd Sess, 78th meeting (1948) 143, and 145. See also Robinson, supra note 165, at 57 (regarding the exhaustive character of Art 2). 169 See Lippman, supra note 165, at 3. See also M Bassiouni, "Commentaries on the Draft Code of Crimes", (1993) 11 Nouvelles Etudes Penales 233. 170 Art II(d) Genocide Convention refers to "[i]mposing measures intended to prevent births within the group." 171 Although see the further discussion of this point infra Chapter 6 notes 73 ff and accompanying text. 172 See Art 6 Statute of the ICC. See also Art 4 Statute of the ICTY, and Art 2 Statute of the ICTR. 173 The Statute of the ICC requires the adoption of more detailed rules of procedure and evidence (see for example Art 51). The Preparatory Commission, established to carry out this task, commenced deliberations in February 1999. The agenda of the Commission includes elements of crimes, and the rules of procedure and evidence of the Court. See United Nations, . 174 See Preparatory Commission of the International Criminal Court, Addendum, Annex III, Elements of Crimes, UN Doc PCNICC/1999/L.5/Rev.l/Add2 (22 Dec 1999) 5 (suggesting, that the term "serious bodily or mental harm" may include inter alia rape and sexual violence, and recognising that "rape and sexual violence may constitute genocide in the same way as any other act, provided that the criteria of the crime of genocide are met."); and Preparatory Commission of the International Criminal Court, Discussion Paper Proposed by the Coordinator, UN Doc PCNICC/2000/WGEC/RT. 1 (24 Mar 2000) 2, footnote 1 (confirming that serious bodily or mental harm "may include, but is not necessarily restricted to, acts of torture, rape sexual violence or inhuman or degrading treatment"). See the further discussion of sexual violence as genocide infra Chapter 6.

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Rules and Procedures for Prosecuting International Crimes Committed during Armed Conflict

The four 1949 Geneva Conventions and Additional Protocol I, do not specifically envisage the prosecution of breaches of their provisions at the international level and contain no principles regulating such prosecutions. Nor does the Genocide Convention deal with rules of procedure and evidence governing the prosecution of this crime. Consequently, the matter is left to the particular body applying the law. Some of the specific needs of women arising in the context of war crimes prosecutions are recognized in the Statute and Rules of Procedure and Evidence of the ICTY.! 75 Prompted largely by the anticipated high volume of prosecutions for sexual violence,1^ the Statute prescribes a system of protections for victims and witnesses that are to be balanced against the rights of the accused. ^7 The protective measures, according to the Statute of the ICTY, "shall include but shall not be limited to, the conduct of in camera proceedings and the protection of the victim's identity."1^8 Under the Rules of Procedure and Evidence of the ICTY, a Judge or Trial Chamber can order appropriate measures to protect victims and witnesses, provided they are consistent with the rights of the accused. ^9 A Chamber may determine whether to order measures to prevent disclosure to the public or the

175 Rules of Procedure and Evidence of the International Criminal Tribunal for the Former Yugoslavia, adopted 11 Feb 1994, as amended 5 May 1994; as further amended 4 Oct 1994; as amended 30 Jan 1995; as amended 3 May 1995; as further amended 15 June 1995; as amended 6 Oct 1995; as further amended 18 January 1996; as amended 23 Apr 1996; as amended 25 June and 5 July 1996; as amended 3 Dec 1996; as further amended 25 July 1997; as revised 20 Oct and 12 Nov 1997; as amended 9 and 10 July 1998; as amended 4 Dec 1998; as amended 4 Dec 1998; as amended 23 Feb 1999; as amended 2 July 1999; as amended 17 Nov 1999 [hereinafter Rules of Procedure and Evidence of the ICTY]. 176 Annex to the Secretary-General's Report on Aspects of Establishing an International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia (Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), UN Doc S/25704 (1993) [hereinafter Statute of the ICTY]. 177 SeeArt 15 (requiring the adoption by the Tribunal of rules of procedure and evidence to inter alia, "regulate the protection of victims and witnesses"); Art 20(1) (requiring the Trial Chamber to "ensure that a trial is fair and expeditious and the proceedings are conducted in accordance with the rules of procedure and evidence, with full respect for the rights of the accused and due regard for the protection of victims and witnesses"); and Art 22 Statute of the ICTY (requiring the Tribunal to provide provisions for the protection of witnesses in its rules of procedure and evidence). 178 See Art 22 Statute of the ICTY. 179 See Rule 75 (A) Rules of Procedure and Evidence of the ICTY.

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media, of the identity or whereabouts of a victim or a witness, or of persons related to or associated with him. 180 Such means include "expunging names and identifying information from the Chamber's public records"; "non-disclosure to the public of any records identifying the victim; giving of testimony through image-or voice-altering devices or closed circuit television; and assignment of a pseudonym"; "closed sessions..."; or "appropriate measures to facilitate the testimony of vulnerable victims and witnesses, such as one-way closed circuit television". 181 Moreover, the Trial Chamber can only order release of a detained accused if satisfied that to do so will not pose a danger to any victim or witness. 182 In certain circumstances the rules provide for the exclusion of the press and the public from all or part of the proceedings.18^ During investigations, the Prosecutor has power to request special measures to "provide for the safety of potential witnesses and informants",18^ and may also request that States take all necessary measures to prevent "injury to or intimidation of a victim or witness". 185 Furthermore, the Prosecutor, may "in exceptional circumstances ... apply to a Trial Chamber to order the non-disclosure of the identity of a victim or witness who may be in danger or at risk until such person is brought under the protection of the Tribunal." 18 ^ A Victims and Witnesses Unit was established in the Registry of the ICTY, in order to "recommend protective measures for victims and witnesses", and to "provide counselling and support for them, in particular in cases of rape and sexual assault. " 18 7 There are specific rules in relation to evidentiary matters in cases of sexual assault.188 Corroboration is not required for the testimony of the victim, 189 no defence of consent can be raised where violence, duress, detention or psychological oppression, or the threat or fear thereof, has occurred, 190 and in order to put forward evidence of consent, "the accused must satisfy the Trial Chamber in camera

180 181 182 183 184 185 186 187 188 189 190

See Rule 75 (B) Rules of Procedure and Evidence of the ICTY. See Rule 75 Rules of Procedure and Evidence of the ICTY. See Rule 65 Rules of Procedure and Evidence of the ICTY. If, inter alia, "the safety, security or non-disclosure of the identity of a victim or witness as provided in Rule 75" so require. Rule 79, Rules of Procedure and Evidence of the ICTY. See Rule 39 Rules of Procedure and Evidence of the ICTY. See Rule 40 Rules of Procedure and Evidence of the ICTY. See Rule 69(A) Rules of Procedure and Evidence of the ICTY. See Rule 34 Rules of Procedure and Evidence of the ICTY. See Rule 96 Rules of Procedure and Evidence of the ICTY. See Rules 96(i) Rules of Procedure and Evidence of the ICTY. See Rule 96(ii) Rules of Procedure and Evidence of the ICTY.

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that the evidence is relevant and credible .. .".^l Finally, no evidence is admissible regarding the prior sexual conduct of the victim.1^2 For the purposes of this discussion, the Statute and Rules of Procedure and Evidence governing the ICTR are the same as those governing the ICTY in all material respects. ^3 There is no requirement in either the Statute of the ICTY or the Statute of the ICTR for sex balance in the composition of the Tribunals themselves, in the staff of the Registry, or in the Office of the Prosecutor. The only exception is in the context of the Victims and Witnesses Unit of the Registry, where consideration must be given "to the employment of qualified women".1^ The Statute of the ICC contains various provisions addressing gender issues. The Statute adopts the approach of the four 1949 Geneva Conventions and the Protocols in that it requires that in its "application and interpretation of law", the ICC "must be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as [inter alia] gender, as defined in article 7, paragraph 3 [of the Statute] ..."}^ There are also provisions designed to ensure that the ICC has a balanced sex composition, and gender expertise in all three organs of the Court, namely, the Office of the Prosecutor, the Registry, and the members of the Court. ^6

191 See Rule 96(iii) Rules of Procedure and Evidence of the ICTY. 192 See Rule 96 (iv) Rules of Procedure and Evidence of the ICTY. 193 See, however, Rule 69 Rules of Procedure and Evidence of the International Criminal Tribunal for Rwanda, adopted on 29 June 1995; as amended on 12 Jan 1996; 15 May 1996; 4 July 1996; 5 June 1997; and 8 June 1998, ICTR, [hereinafter Rules of Procedure and Evidence of the ICTR] (replacing the words "until such person is brought under the protection of the Tribunal" in the Rules of Procedure and Evidence of the ICTY, with "until the Chamber otherwise decides") and Rule 34(b) of the Rules of Procedure and Evidence of the ICTR (including the additional requirement that a "gender sensitive approach to victim and witness protective and support measures should be adopted."). 194 See Rule 34B ICTY Rules of Procedure and Evidence of the ICTY and Rule 34B Rules of Procedure and Evidence of the ICTR. 195 See Art 21(3) Statute of the ICC. For the definition of gender see supra note 263 196 See Art 42(9) Statute of the ICC (requiring the Prosecutor to appoint advisers "with legal expertise on specific issues, including but not limited to, sexual and gender violence and violence against children."); Art 44(2) (requiring that in the employment of staff, the Prosecutor and the Registrar shall have regard to the criteria set out in Art 36(8), which includes a fair representation of men and women, and expertise on issues including violence against women); Art 36 (8)(a)(iii) (stating that in the selection of judges, States Parties shall take into account the need for "A fair representation of female and male judges"); Art 36 (8)(b) (requiring States Parties to also "take into account the need to include judges with legal expertise on specific issues, including, but not limited to, violence against women or children").

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To provide protection for victims and witnesses, the Registrar is required to set up a Victims and Witnesses Unit, similar to those provided for in the Statute of the ICTY and the Statute of the ICTR, and "[t]he Unit shall include staff with expertise in trauma, including trauma related to crimes of sexual violence". 1 ^ In addition to the establishment of this Unit there are further protections for victims and witnesses. In the course of investigations, the Prosecutor has a duty to "respect the interests and personal circumstances of victims and witnesses, including age, gender...and health, and take into account the nature of the crime, in particular where it involves sexual violence, gender violence or violence against children ,..". 1 9 8 The Prosecutor may also "take necessary measures, or request that necessary measures be taken, to ensure ... the protection of any person ...".199 The Pre-Trial Chamber may also "[w]here necessary, provide for the protection and privacy of victims and witnesses ...". 2 0 0 In common with the Statutes of both the ICTY and the ICTR, trials before the ICC must be conducted with full respect for the rights of the accused, and with "due regard for the protection of victims and witnesses".201 With that balance in mind, the Court is required to "take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses", and must have regard to, inter alia, gender considerations, and "the nature of the crime, in particular, but not limited to, where the crime involves sexual or gender violence or violence against children." 202 The Court is permitted to "conduct any part of the proceedings in camera, or allow the presentation of evidence by electronic or other special means." In the case of victims of sexual violence and child witnesses, the presumption is that evidence will be given this way, unless otherwise ordered by the Court, having regard to, inter alia, the views of the victim or witness.2°3 There is scope for the views and concerns of victims and witnesses to be presented to, and considered by, the Court, 20 ^ and also for the Victims and Witnesses Unit to advise the Prosecution and the Court on protection issues.2°5 There is also provision for

197 198 199 200 201

202 203 204 205

See Art 43(6) Statute of the ICC. See Art 54(l)(b) Statute of the ICC. See Art 54(3)(f) Statute of the ICC. See Art 57(3)(c) Statue of the ICC. See Art 64(2) Statute of the ICC. The Statute allows the Trial Chamber to "[p]rovide for the protection of the accused, witnesses and victims ...", see Art 64(6){e). Provision is made for trials to be held in closed session in certain circumstances. See Arts 64(7) and 68. See Art 68 (1) Statute of the ICC. See Art 68(2) Statute of the ICC. See further Art 69(2). See Art 68(3) Statute of the ICC. See Art 68(4) Statute of the ICC.

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certain forms of evidence to be withheld by the Prosecutor in situations where its disclosure "may lead to the grave endangerment of the security of a witness or his or her family".206 Article 69(2) extends the methods for testifying to include: the giving of "viva voce (oral) or recorded testimony of a witness by means of video or audio technology, as well as the introduction of documents or written transcripts", always having regard to the rights of the accused. States parties must comply with requests by the Court for assistance in the "protection of victims and witnesses...". 207 Finally, the Preparatory Commission for the International Criminal Court has drafted principles for the giving of evidence in cases of sexual violence.208 j.

Compensation for Victims of Armed Conflict

The principle that an individual is entitled to reparation, including compensation, for breaches of human rights and IHL appears to be increasingly accepted. Many human rights documents expressly enshrine the right to an effective remedy for injured individuals, 209 and compensation is considered an integral element of such a remedy. 210 There are no directly comparable provisions of IHL

206 See Art 68(5) Statute of the ICC. 207 See Art 93 (1) (j) Statute of the ICC. 208 See Preparatory Commission for the International Criminal Court, Discussion Paper Proposed by the Coordinator Regarding Part 6 of the Rome Statute, Concerning the Trial, UN Doc PCNICC/2000/WGRPE(6)/RT.6 (2000). 209 See for example, Art 8 Universal Declaration on Human Rights, 1948, UN Doc A/810 (10 Dec 1948); Art 2(3) (a) International Covenant on Civil and Political Rights, 1966 (999 UNTS 171) (and see also Art 9 regarding compensation for unlawful arrest or detention); Art 14 Convention against Torture and Other Cruel, Inhuman and Degrading Treatment and Punishment, 1984, (1984) 23 ILM 1027, UN Doc A/39/51 (184) at 197 (expressly providing for a right to fair and adequate compensation), Art 6 Convention on the Elimination of all Forms of Racial Discrimination, 1965 (660 UNTS 195); Art 4(d) Declaration on the Elimination of Violence against Women, UN Doc A/RES/48/104 (21 Dec 1993). Moreover, the duty of a State to ensure the provision of compensation, in appropriate cases, to victims of crime, is enshrined in General Assembly Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, UN Doc A/RES/40/34 (29 Nov 1985) Arts 4, and 8-17. See generally, Study Concerning the Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms (Final Report Submitted by Mr. Theo van Boven, Special Rapporteur to the Commission on Human Rights), UN Doc E/CN.4/Sub.2/1993/8 (1993) [hereinafter van Boven 1993 Report}. 210 See for example, van Boven 1993 Report, ibid, at para 56 (concluding after a survey of the decisions of the Human Rights Committee that the duties incumbent upon a State that has violated its human rights obligations include, inter alia, the payment of compensation to the victim or to the victims family); Velasquez Rodriguez, (1989) 28 ILM 291, Inter American Court of Human Rights (Series A Vol 25), para 173- For a comprehensive analysis of remedies, including compensation, in international human rights law, see D Shelton, Remedies in International Human Rights Law (1999).

International Humanitarian Law, Women and Armed Conflict

regarding the right of the individual to an effective remedy for breach of its provisions. IHL, unlike human rights law, has not traditionally been concerned with conferring rights on individuals as opposed to contracting States, and therefore, the issue of compensation for individuals affected by breaches of its provisions has not been perceived as a primary objective of the regime.211 Compensation for violations of IHL was included in the mandate of the Special Rapporteur on the Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms, and has been a component of subsequent work on this topic.212 The draft Basic Principles and Guidelines on the Right to Reparation for Victims of [Gross] Violations of Human Rights and International Humanitarian Law, submitted by the Special Rapporteur in 1997, recognises that "[u]nder international law every State has the duty to respect and to ensure respect for human rights and international humanitarian law",21^ and that this obligation entails, inter alia, "the duty ... to afford remedies and reparations to victims".214 There are several possible sources of compensation for victims of armed conflict. First, compensation may be payable by a State that is in breach of its obligations under international law.21^ It is a well-established principle of international law that a State must make reparation (which can include the payment of compensation) for its internationally wrongful acts.216

211 In some circumstances conventional IHL does confer rights on individuals that are good against their own State. The issue has been particularly significant in the context of prisoners of war and forced repatriation. See generally, T Meron, "The Humanization of Humanitarian Law", (2000) 94 AJIL 240 at 251-256. 212 In 1989, pursuant to resolution 1989/13, the Sub-Commission on Prevention of Discrimination and Protection of Minorities, appointed MrTheo van Boven as Special Rapporteur to undertake a study concerning the right to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms. The final report of the Special Rapporteur was presented in 1993. See van Boven 1993 Report, supra note 209. Work has commenced on formulating basic principles on this topic, with a view to finalising a document for adoption by the General Assembly. See for example, Report of the Independent Expert on the Right to Restitution, Compensation and Rehabilitation for Victims of Grave Violations of Human Rights and Fundamental Freedoms, Mr M Cherif Bassiouni, Submitted pursuant to Commission on Human Rights Resolution 1998/43, UN Doc E/CN.4/1999/65 (8 Feb 1999) [hereinafter Bassiouni 1999 Report}. 213 Basic Principles and Guidelines on the Right to Reparation for Victims of [Gross] Violations of Human Rights and International Humanitarian Law, UN Doc E/CN.4/1997/104 (16 Jan 1997) Art 1. 214 Ibid, hit 2. 215 See generally, I Brownlie, State Responsibility (1983). 216 Case Concerning the Factory at Chorzdw (Claim for Indemnity) (Merits) PCIJ, Ser A, no 17, p 29.

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Various provisions of IHL apply this general principle to the specific situation of armed conflict. By Article 3 of the Hague Convention IV of 1907,21^ "[a] belligerent Party which violates the provisions of the said Regulations shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces."218 The question arises as to whether this provision affords individuals, as opposed to States, a right to receive compensation. The drafting history of Article 3 appears to support the proposition that the provision permits individuals who have suffered loss, to seek compensation directly from the State.219 Article 91 of Protocol I, relating to international armed conflicts, is in similar terms to Article 3 of the 1907 Hague Convention, and provides that a State Party, which is in breach of the 1949 Geneva Conventions or the Protocol, is "responsible for all acts committed by persons forming part of its armed forces", and "shall if the case demands, be liable to pay compensation." However, the drafting history of Article 91 of Protocol I, reveals quite a different purpose behind its adoption, despite the fact that it is almost a verbatim reproduction of the earlier provision in the 1907 Hague Convention. States supporting the provision on this occasion were primarily concerned to ensure the payment of compensation to States that had been detrimentally affected by violations of the laws of armed conflict. Concern for individual victims was not one of the motivating factors.220 Thus it is unclear whether Article 91 gives rise to an individual right to compensation, or confers rights upon States only. It has been argued that, in combination, Article 3 of the Hague Convention and Article 91 of Protocol I provide a right to compensation for both States and individual victims.221 Further provisions of relevance are Article 68 of the Third Geneva Convention, governing compensation claims by prisoners of war, and Article 55 of the Fourth Geneva Convention, requiring the payment of compensation by an Occupying Power "for any requisitioned goods". With respect to grave breaches of the 1949 Geneva Conventions, "[n]o High Contracting Party shall

217 See supra note 8. 218 For a discussion of attribution under this Article, see F Kalshoven, "State Responsibility for Warlike Acts of the Armed Forces: From Article 3 of Hague Convention IV of 1907 to Article 91 of Additional Protocol I of 1977 and Beyond", (1991) 40 ICLQ 827; and T Kamenov, "The Origin of State and Entity Responsibility for Violations of International Humanitarian Law in Armed Conflicts", in F Kalshoven & Y Sandoz eds, Implementation ofInternational Humanitarian Law (1989) 169. 219 See Kalshoven, ibid, at 830, 836. 220 Ibid, at 846. 221 Ibid, at 846-847.

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be allowed to absolve itself or any other High Contracting Party of any liability incurred by itself or another High Contracting Party."222 Neither Common Article 3 of the four 1949 Geneva Conventions, nor Protocol II, provide for the payment of compensation in the case of non-international armed conflict. It is not only breaches of IHL that incur State responsibility in the context of armed conflict. Where a State violates the UN Charter ban on the use of force, it is responsible for all damage resulting from its illegal action, and not only that attributable to breaches of IHL. This principle is of great significance for victims of armed conflict.22^ A second possible source of compensation for those who have been the victims of criminal acts during armed conflict is the perpetrator of the offence themselves. As the international community has assumed greater responsibility for prosecuting international crimes committed during armed conflict, this issue has received some attention. Neither the Statute of the ICTY, nor that of the ICTR, expressly includes the power to order compensation as part of the penalties imposed on convicted persons.22^ Instead, responsibility for compensation is left to domestic jurisdictions. The respective Rules of Procedure and Evidence of the ICTY and of the ICTR, provide that, following a conviction in cases where an injury has been caused to a victim, the Registrar shall transmit the judgment to the authorities of the States concerned. If the victim, or a person claiming through the victim, makes a domestic claim for compensation, the judgment constitutes conclusive evidence of the criminal responsibility of the convicted person.225 The ICTY and ICTR, however, do have power to order the return of property and proceeds acquired by criminal conduct.22^ Following a conviction, the Trial Chamber may hold a special hearing to determine restitution of property or of the proceeds of property, including property in the hands of third parties

222 Arts 50 and 51 First Geneva Convention; Arts 51 and 52 Second Geneva Convention; Arts 130 and 131 Third Geneva Convention; and Arts 130 and 131 Fourth Geneva Convention. 223 See the discussion of the UNCC infra Chapter 6. 224 For a brief discussion regarding the issue of compensation and the Statute of the ICTY, see Morris & Scharf, supra note 136, at 286-289. Nonetheless, at the time the Statute of the ICTY was adopted, the United States representative, in clarifying her country's position regarding Art 24 (relating to penalties), stated that "... with respect to Article 24, it is our understanding that compensation to victims by a convicted person may be an appropriate part of decisions on sentencing, reduction of sentence, parole or commutation." See Verbatim Record, UN Doc S/PV.3217 (25 May 1993), (Reprinted in id, at 189). 225 Rule 106 Rules of Procedure and Evidence ICTR/ICTY. 226 Art 24(3) Statute of the ICTY, and Art 23(3) Statute of the ICTR.

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otherwise unconnected with the commission of the crime.22^The standard to be applied regarding determination of ownership is the balance of probabilities.228 If the Chamber is unable to determine ownership, it must request the relevant national authorities to do so. Upon the basis of that determination, the Chamber must order restitution or make such other order as it deems appropriate.22^ The Statute of the ICC includes a provision on reparation to victims. Article 75(1) directs the Court to "establish principles relating to reparations to, or in respect of, victims, including restitution, compensation and rehabilitation", and the Preparatory Commission for the International Criminal Court has given consideration to this issue.230 The Court is then given power to "determine the scope and extent of any damage, loss and injury..." suffered by a victim.2^ The Court can make an order regarding reparations directly against a convicted person.2^2 Reparations can be awarded on an individual or a collective basis, or both. 2 ^ It is also envisaged that, in appropriate cases, reparation awards can be made to approved intergovermental, international or national organizations.2^ The Statute provides for the establishment of a Trust Fund to benefit victims of crimes within the jurisdiction of the Court, and their families.2^5 Reparations can be ordered from this Trust Fund, and the Court can order that "money and other property collected through fines or forfeiture ... be transferred ... to the Trust Fund." 2 ^ Victims, among others, have an opportunity to make representations to the Court regarding reparations.2^ The provisions of the ICC Statute on reparations are without prejudice to the rights of the victim under national or international law.2^8

227 Rule 105 (A) and (B) Rules of Procedure and Evidence ICTY/ICTR. For a discussion of Rule 105 see Bassiouni & Manakus, supra note 2, at 703228 Rule 105(D) Rules of Procedure and Evidence ICTY/ICTR. 229 Rule 105(E) and (F) Rules of Procedure and Evidence ICTY/ICTR. 230 Preparatory Commission for the International Criminal Court, Discussion Paper Proposed by the Coordinator Regarding Part 6 of the Rome Statute Concerning the Trial, UN Doc PCNICC/2000/WGRPE(6)/RT.2 (27 Mar 2000). 231 Art 75(1) Statute of the ICC. 232 Art 75(2) Statute of the ICC. 233 Preparatory Commission for the International Criminal Court, Discussion Paper Proposed by the Coordinator Regarding Part 6 of the Rome Statute Concerning the Trial, UN Doc PCNICC/2000/WGRPE(6)/RT.20 (27 Mar 2000) Rule D(a). 234 Ibid, Rule D(a), Rule E(d). 235 Art 79(1) Statute of the ICC. 236 Art 79(2) Statute of the ICC. 237 Art 75(3) Statute of the ICC. 238 Art 75(6) Statute of the ICC.

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A third possible source of compensation for victims of armed conflict is the international community generally, although to date such payments have been made only on an ex gratia basis, rather than pursuant to any formal obligation. As outlined above, the Statute of the ICC specifies that a trust fund to aid victims of crimes is to be established.2^ States will be invited to make voluntary contributions to this fund. Other trust funds created to provide financial assistance to victims of human rights abuses, include the United Nations Voluntary Fund for Victims of Torture, and the United Nations Voluntary Trust Fund on Contemporary forms of Slavery.240

239 See Bassiouni 1999 Report, supra note 212, at para 69, drawing a comparison between the ICC Trust Fund, and principle 13 of the Basic Principles of Justice. 240 Ibid.

CHAPTER 4 A GENDER VIEW OF THE SHAPING OF IHL

1.

Introduction

In Chapter Three, we outlined the regime of IHL for women. In this Chapter, we assemble a picture of the "woman" of IHL, drawn from both the provisions that provide protection for all victims of armed conflict, and those that specifically address the needs of women. We then consider the extent to which the woman that we identify reflects the reality of women's experience of armed conflict, as documented in Chapter 2. There is little overlap between the two. There are either no provisions, or those that exist take a limited view of women and the impact of armed conflict on their lives. The remainder of the Chapter explores reasons for this disharmony. Many of the defects of IHL in relation to women can be attributed to its inherently discriminatory nature. Although IHL is based on a system of formal equality,1 the limits of such an approach for achieving substantive equality for women are well documented.2 IHL takes a particular male perspective on armed conflict, as the norm against which to measure equality. In a world where women are not equals of men, and armed conflict impacts on men and women in a fundamentally different way, a general category of rules that is not inclusive of the reality for women cannot respond to their situation.3 As with many regimes based on formal equality, there is some recognition in IHL of the limitations of this approach when the norm of the system is male. IHL has a number of "special" provisions for women. There are serious drawbacks to adopting any legal model that singles women out for particular treatment. Such an approach relegates women to the category of the inferior "other".^ However, if the content of the particular rules for women more See the discussion supra Chapter 3 notes 43 ff and accompanying text for the provisions of IHL which proscribe the discriminatory application of the rules. See for example, N Lacey, "Legislation Against Sex Discrimination: Questions from a Feminist Perspective", (1987) 14 JL & Soc 411 at 415. Equality theory is still the preferred option of liberal theorists as the mode of accommodating the demands of women for change. In the context of international law, see F Teson, "Feminism and International Law: A Reply", (1993) 33 VirgJIL 647. See generally, S de Beauvoir, The Second Sex (1970); and L Irigaray, Speculum of the Other Women (1985). Moreover, any law that appears to give preference to any individual or group is open to the claim that it is discriminatory in itself. There is a wealth of experience in domestic contexts where attempts to overcome the unsatisfactory operation of facially equal laws have infringed antidiscrimination legislation.

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accurately reflected their actual needs, IHL would be a less unsatisfactory regime. The ambit of the special provisions for women of IHL, however, is very restricted. They attempt to deal with the "biological" differences of women and some of the consequences that flow from these characteristics of women. IHL includes rules addressing the situation of pregnant women, maternity cases and women as victims of, or at risk of, sexual violence. Their common theme is the protection of women in terms of their relationship with others and not as individuals in their own right. Generally, women are valued in IHL in terms of the sexual and reproductive aspects of their lives. Even these, however, are viewed from a male perspective in IHL. Apart from the protections contained in the special provisions, which do seek to address valid concerns, women are largely invisible in IHL. Any indication that women's experience of armed conflict is distinctive, and encompasses wider issues than their roles as mothers and objects of sexual violence, is not discernible. The assumption is that the general provisions in relation to combatants and civilians perform this function. We demonstrate, however, that this is not the case. These rules take an equally constrained view of the reality of armed conflict for the lives of women. The shortcomings of IHL are exacerbated by the fact that many provisions with the potential to encompass some aspects of women's experience have traditionally been interpreted in such a way as to exclude women from their scope.5 A full picture of what is wrong with the existing provisions of IHL requires more than a recognition that women are insufficiently taken into account in its provisions. What is needed is a comprehensive gender-based critique, that reveals the role of IHL in reinforcing and exacerbating the endemic discrimination against women that exists in all societies. IHL is a particularly useful laboratory for gender analysis as it deals with the activity where one finds the ultimate in the constructed male and female — armed conflict. Its rules perpetuate in a condensed and strikingly visible way all the assumptions of Western femininity and masculinity that permeate law in general. Much of the dissonance between the actual provisions of IHL and the reality of armed conflict for women can be attributed to the vision of woman that IHL accepts as its model. The same argument is equally valid in relation to the

5

As in the context of dissemination (see the further discussion infra note 33 and accompanying text) and enforcement (see the further discussion infra note 23 and accompanying text). The approach of the ICRC to its guiding principle of impartiality is a further example of this phenomenon, see the discussion infra note 225 and accompanying text.

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"male" of IHL. To a considerable extent the image of women that we see in IHL can be traced to chivalric ideals that have contributed so much generally to modern IHL, and is perpetuated by the stereotypes of masculinity and femininity that are integral to the culture of the military. Moreover, this construct of woman contributes to the pervasive invisibility of other aspects of women's lives from the coverage of IHL. Not all the silences of IHL, however, can be attributed to the fact that the regime adopts and reinforces a certain view of women. Many of the gaps in the protection offered to women are shared by all victims of armed conflict. For example, the limited applicability of IHL to internal conflicts, and its primary focus on the period of hostilities, increasingly constrain its relevance to modern armed conflict. We argue, however, that these factors are not neutral in their impact but rather that they are experienced distinctly by women.

2.

The Woman of IHL

The detailed picture of the woman of IHL is derived from both the special and general provisions. What then is the woman that we see in IHL? a.

The Special Provisions and the Norm of IHL

The regime of special protection for women during armed conflict reveals a picture of women that is drawn exclusively on the basis of their perceived weakness, both physical and psychological, and their sexual and reproductive functions. For example, the conventional requirements that women must be treated with all the regard due to their sex, have been described as encompassing factors such as weakness, honour and modesty, pregnancy and child birth.''

See J Pictet et al eds, Geneva Convention Relative to the Treatment of Prisoners of War (1960) [hereinafter Commentary Third Geneva. Convention} 147. For the full text of the Commentary on this point, see supra Chapter 3 at note 48 and accompanying text.

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Although forty-two provisions of the four 1949 Geneva Conventions7 and Additional Protocols8 specifically deal with women and the effects of armed conflict, nineteen concern women as "expectant mothers", "maternity cases", or "nursing mothers".9 The protection of the unborn child and small children is the rationale for many of these provisions. Women are included in their scope as they are integral to that protection. For example, Article 70(1) of Protocol I dealing with relief actions includes expectant mothers, maternity cases and nursing mothers, as those who should be accorded privileged treatment or special protection. According to the commentary to the Protocol, the category of nursing mothers was added at the request of a delegate on the basis that "babies needed food, and if mothers were to feed them they too had to be fed."10 Similarly, in the context of Article 76(2) of Protocol I, dealing with the arrest, detention or internment of pregnant women and mothers having dependent children, one finds the comment that "the underlying purpose of the provision is to protect the unborn child or dependent infant more than the woman herself."11 7

Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 Aug 1949 (75 UNTS 31) [hereinafter First Geneva Convention]; Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 Aug 1949 (75 UNTS 85) [hereinafter Second Geneva Convention]; Geneva Convention relative to the Treatment of Prisoners of War of 12 Aug 1949 (75 UNTS 135) [hereinafter Third Geneva Convention]; Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 Aug 1949 (75 UNTS 287) [hereinafter Fourth Geneva Convention. See also Arts 3 and 4 of the Geneva Convention on the Treatment of Prisoners of War 1929 (118 LTS 303). The relevant treaty provisions are listed in F Krill, "The Protection of Women in International Humanitarian Law", (1985) 249 IRRC 337.

8

Protocol Additional to the Geneva Conventions of 12 Aug 1949, and relating to the Protection of Victims of International Armed Conflicts, adopted in 1977 (Protocol I), (1977) 16 ILM 1391 [hereinafter Protocol I]; and Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non- international Armed Conflicts, adopted in 1977 (Protocol II), (1977) 16 ILM 1442 [hereinafter Protocol II]. For the details of these provisions, see supra Chapter 3 note 67-77 and accompanying text. See C Pilloud et al, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (1987) 22. In the context of Art 89 Fourth Geneva Convention, one finds the comment: "[paragraph 5 lays down that children and expectant and nursing mothers are to be provided with additional food. In their case deficiency diseases would be particularly deplorable, as they would affect future generations, [footnote omitted]". See also J Pictet et al eds, Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1958) [hereinafter Commentary Fourth Geneva Convention] 395. M Bothe et al, New Rules for Victims of Armed Conflicts: Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of1949 (1982) 470. See also Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva (1974-1977), Federal Political Department, Berne 1978, CDDH/III/SR.44 at 61 (statement of the German Democratic Republic). For similar comments in relation to Arts 89 and 132 Fourth Geneva Convention, see Commentary Fourth Geneva Convention, ibid, at 395-396, 510-514.

9 10

11

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The other major category of special rules relating to women deal with the prevention of sexual violence, and the protection of the chastity and modesty of women.12 Many of the provisions dealing with sexual violence are couched in terms of the honour of women. For example, the Fourth Geneva Convention stipulates that women must be "especially protected against any attack of [sic] their honour, in particular against rape, enforced prostitution, or any form of indecent assault". ^ The honour of women, as depicted in IHL, is constituted solely on the basis of certain assumed sexual attributes, the characterising features of which are chastity and modesty. ^ b.

The General Provisions and the Norm of IHL

A basic requirement of the provisions of IHL is that they be applied without discrimination to all victims irrespective of their sex, class or race.15 Therefore, it was clearly anticipated by those drafting the regime that there may be discrimination in relation to sex when the general rules came to be applied in specific cases. The rules assume, that apart from the aspects of women's lives dealt with by the "special" provisions, men and women have identical needs, and that the requirement of equal treatment will address any potential problem of discrimination. Therefore, the general provisions of IHL in addressing humanitarian needs in armed conflict assume a population in which there is no systemic gender inequality. This is perhaps the most significant characteristic of the general rules of IHL for this study. The system fails to recognise the unequal situation of men and women in society generally. A more detailed examination of particular rules indicates that the combatant, traditionally the central figure in armed conflict, is the beneficiary of the most detailed provisions of the system. Consequently it is possible to obtain a relatively clear picture of the norm around which the regulatory scheme is constructed.1^ IHL assumes a combatant predominantly engaged in an international armed

12 13 14

15 16

For the details of these provisions, see supra Chapter 3. Art 27 Fourth Geneva Convention. See Art 12 First Geneva Convention: "women shall be treated with all consideration due to their sex", which one commentator defines as "the consideration which is accorded in every civilised country to beings who are weaker than oneself and whose honour and modesty call for respect", J Pictet et al, Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of August 12 1949 (1952) [hereinafter Commentary First Geneva Convention} 140. See the discussion supra Chapter 3 notes 43 ff and accompanying text. For a description of the rules of IHL in relation to combatants, see L Green, The Contemporary Law of Armed Conflict (2nd ed, 1998) Chapters 6-11; and D Fleck ed, The Handbook of Humanitarian Law in Armed Conflicts (1995) Chapters 3, 4, 6 and 7.

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conflict, who is a well-armed, well-trained, well-dressed professional, from an organised group, 17 expecting to be well-treated on captivity,18 literate, and someone for whom maintaining links with home is important.*9 There are a few exceptions apparent from the rules on irregular combatants, but this is the norm. As the combatant is the only legitimate target in armed conflict, one of the major underlying themes of IHL is the placing of limits on what is permissible in relation to this participant. To this end, the concept of unnecessary suffering and superfluous injury is designed to limit the means and methods of combat. 20 Outside the context of combat, "mistreatment" of the combatant is envisaged as relating to their physical treatment when wounded and sick and when prisoners of war; and to their "civil and political" rights and their honour, during their period of imprisonment. 21 An example of treatment inconsistent with the honour of a warrior is public humiliation and employment in work of a humiliating nature. 22 In relation to the civilian population, IHL assumes as its norm a civilian who is either caught up in an international armed conflict; or an internal conflict where the hostilities are of a high level of intensity.23 Generally speaking, the rules also contemplate the type of warfare where military targets and military objectives can be readily distinguished from the civilian population and civilian objects, where direct military advantages are identifiable,2^ and where protection is only needed during times of hostilities or during periods of occupation and against the actions of "enemy" forces. The norm of the general provisions of IHL in relation to both combatants and civilians is also male. The existence of the special rules for women confirm this characteristic of the system. Moreover, gender-specific language is used

17 18 19 20

21 22

23 24

See Art 4 Third Geneva Convention (determining combatant status). See generally, Third Geneva Convention, particularly Art 13 (humane treatment); Art 22 (dealing with conditions of internment); Art 26 (food); Art 27(clothing); Art 28 (canteen). See Arts 70 and 71 Third Geneva Convention. See H Meyrowitz, "The Principle of Superfluous Injury or Unnecessary Suffering", (1994) 299 IRRC 98; and see A Cassese, "Weapons Causing Unnecessary Suffering: Are they Prohibited?", (1975) 58 Rivista Diritto Internationale 12 at 13-15. For example, IHL regulates such matters as the right to wear uniforms and insignia of rank and to be treated with due regard to rank. See, for example, Arts 40 and 44 Third Geneva Convention. See Art 52 Third Geneva Convention and see Commentary Third Geneva Convention, supra note 6, at 277 (describing this requirement as a specific example of the general reference to the honour of prisoners of war elsewhere in the Convention). See the discussion of the field of application of IHL supra Chapter 3 note 28 ff and accompanying text. See the discussion of provisions protecting the civilian population from attacks supra Chapter 3 notes 85 ff and accompanying text.

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throughout the rules of general application.2^ The maleness of the norm of IHL is confirmed in other ways. For example, the Commentary on the Third Geneva Convention describes prohibited "humiliating work" as that which would make the prisoner a "laughing stock of those around him".2'' Leslie Green provides as an example of humiliating work, "being made to do work that is normally only done by women".2^ It appears that women prisoners of war lead a somewhat schizophrenic existence in IHL. No doubt as combatants they are perceived as superior to women civilians, but as inferior to male combatants. An interesting inquiry would be as to whether it is equally "humiliating", and thus unlawful for them to do work normally only done by women. c.

The Hierarchy of the Rules

The hierarchy in the regime adds the dimension of inferiority to the woman of IHL. The rules dealing specifically with women are regarded as less important than others and their infringement is not taken as seriously. This idea of a gendered hierarchy is a familiar one in the context of the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW).28 It has been suggested that CEDAW is, in some ways, of lesser status than general human rights instruments. This is evidenced, for example, in the acceptance of the widespread practice of States making reservations to its provisions that appear to strike at its very heart.2^ The same phenomenon of a hierarchy based on gender can be observed in the rules of IHL. Many of the specific provisions dealing with the protection of women are drafted in different language from the provisions protecting combatants and civilians generally. They are frequently expressed in terms of protection rather than prohibition. For example, Article 76(1) of Protocol I requires that "[w]omen ... shall be protected in particular against rape, enforced prostitution, or any other form of indecent assault."^0 This language can be compared with

25 26 27 28 29

30

See for example, Arts 99, 100, 103 Third Geneva Convention, Arts 35, 39 Fourth Geneva Convention and Arts 11(4), 37, 41(2), 75(4)(a) Protocol I. Commentary Third Geneva Convention, supra note 6, at 277. Green, supra note 16, at 194 note 47. Convention on the Elimination of Ml Forms of Discrimination against Women, UN Doc A/34/46 (1979), (1325 UNTS 378) [hereinafter CEDAW]. See B Clark, "The Vienna Reservations Regime and the Convention on Discrimination Against Women", (1985) 85 AJIL 281; and R Cook, "Reservations to the Convention on the Elimination of all Forms of Discrimination Against Women", (1990) 36 VirgJIL 643. See also Art 76 Protocol I.

100

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the mandatory nature of provisions dealing with offences solely or primarily involving men, such as Article 13 of the Third Geneva Convention and Common Article 3 to the Geneva Conventions. 31 There is a tendency for imprecision in the provisions in relation to women and consequently the protection they offer is unclear. An example that occurs frequently is the phrase "women are to be treated with all regard due to their sex".32 This vagueness of language is not restricted to the provisions relating to women. 33 It is, however, more prevalent in the "special" provisions. Breach of the rules in relation to women is not treated as serious within the system of IHL. None of the treaty provisions specific to women impose obligations the breach of which are designated as "grave breaches".3^ So, for example, rape is not expressly designated as a grave breach of the rules. It is argued by many, however, that today rape is implicitly recognised as a grave breach. Article 147 of the Fourth Geneva Convention specifies that "wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health", are among those crimes that constitute grave breaches of the law of armed conflict. Although there is now a great deal of support for the view that rape is included in Article 147 (either as torture or inhuman treatment, or as an act wilfully causing great suffering or serious injury to body or health), it was not the type of activity that was in the minds of the drafters of the Convention. 35 Overall, none of the provisions in the Geneva Conventions or Protocols that provide special protection for women explicitly come within the system of grave breaches set up to enforce the law. Since the adoption of Protocol I, certain attacks involving civilians, constitute a grave breach of its provisions.3^ However, the vast majority of such grave breaches are constituted by acts that are most likely to be perpetrated against men, or relate to the destruction and appropriation of property that is usually owned by men. 3 ^

31

32 33 34 35 36 37

Art 13 Third Geneva Convention reads "... any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited and will be regarded as a serious breach of the present Convention." Common Art 3 states "... the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons; ...". See for example, Art 12 First Geneva Convention and Art 14 Third Geneva Convention. For example, Art 14 Third Geneva Convention requires that "prisoners of war are entitled in all circumstances to respect for their persons and their honour". See the further discussion of grave breaches supra Chapter 3 note 109 ff and accompanying text. See the further discussion of rape as a grave breach infra Chapter 6 notes 148 ff and accompanying text. See Art 85(3) and see also Art 85(4) Protocol I. See the further discussion of this issue infra Chapter 6 notes 44- 48 and accompanying text.

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So far, our examination of IHL has identified a number of assumptions underlying the system. First, IHL takes as its norm a woman of certain clearly defined characteristics that are common to all women. Secondly, it is assumed that the rules operate in a setting where there is no systemic gender inequality. Thirdly, the rules pre-suppose a particular experience of armed conflict that is common to all women. We now consider to what extent these assumptions in IHL mirror the reality of armed conflict for women.

3.

The Woman of IHL and the Reality of Armed Conflict for Women

When we consider the impact of armed conflict on women, there is a wide discrepancy between the picture IHL presents of the civilian and combatant, and the experience of women. In Chapter 2 we described the effect of armed conflict on civilian women, under a number of heads: the deliberate killing of women; "collateral damage" and women; violence against women; displaced and refugee women; women in detention; re-enforced gender stereotypes; loss of family members; loss of social position; economic effects of armed conflict; and access to essential supplies and services. To what extent does IHL acknowledge these effects? The direct killing of civilians during periods of hostilities and occupation is prohibited in IHL.^8 However, the ready availability of weapons such as small arms and landmines, that contribute disproportionately to civilian women casualties, is unregulated by IHL.39 In the context of "collateral damage" to the civilian population during armed hostilities, women are particularly susceptible to death or injury from forceful actions of their "own side" in the conflict. For example, in order to discourage attacks on particular objectives, military targets may be deliberately placed near civilian objects, or women used as human

38 39

See for example, Common Art 3 to the Geneva Conventions; Art 51(2) and (6) Protocol I; and Arts 27 and 32 Fourth Geneva Convention. Generally speaking, IHL does not deal with the issue of weapons proliferation or disarmament. See supra Chapter 3 notes 99 ff and accompanying text. However, in recent times, the international community has taken steps to regulate the use of and proliferation of small arms, including landmines. See, for example, the Convention on the Prohibition on the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, open for signature in Ottawa, 1997. In the context of small arms, a Panel of Governmental Experts on Small Arms has been established "to develop guidelines for disarming combatants witli respect to small arms, light weapons and ammunition, as well as their suggestions for collection and disposal of those weapons." See Protection of Children Affected by Armed Conflict, UN Doc A/53/482 (12 Oct 1998) para 38; and Protection of Children Affected by Armed Conflict, UN Doc A/54/430 (1 Oct 1999) para 47.

102

A Gender View of the Shaping of IHL

shields. IHL to some extent addresses these practices.^0 However, there is no obligation for a party to the conflict to adopt comprehensive measures, such as the provision of access to shelters and protective equipment, in order to reduce civilian casualties amongst its own population.^ 1 Similarly, there is no requirement that public information about war-related hazards, such as landmines, take into account factors such as the high level of illiteracy amongst women. In relation to the issue of violence against women, IHL recognises the vulnerability of women to rape, enforced prostitution and indecent assault, although these acts are categorised as matters of honour and dignity, rather than as grave acts of violence.^2 The many other types of sexual violence experienced by women in armed conflict, that we have identified, are not specifically referred to. Increasingly, however, general provisions of IHL are being interpreted to cover such acts.43 Protocol I protects women from "rape, forced prostitution and any other form of indecent assault", at the hands of the party of whom they are a national, as well as against actions by enemy forces.44 However, other war-related violence directed at women from within their own communities, such as increased rates of domestic violence and female genital mutilation, is not addressed by IHL. Moreover, in the aftermath of conflict, in light of the subordinate status of women in society, the physical, psychological and financial needs of women victims of violence are likely to be accorded low priority. IHL contains no obligations for parties to facilitate the recovery and re-integration into society of such women. In the context of torture, although there are recent signs of progress, traditionally, what amounts to prohibited torture in IHL 4 5 fails to take account of the gender aspects of the c r i m e d

40 41

42 43

44 45 46

See supra Chapter 3 notes 94-96 and accompanying text. See Arts 61-67 Protocol I containing measures in favour of civil defence organisations that perform such humanitarian tasks as the evacuation of civilians, the management of shelters and blackout measures, and the provision of emergency accommodation and supplies. However, there is no requirement for the implementation of specific civil defence measures. See supra Chapter 3 note 61 and accompanying text. See the discussion infra Chapter 6 notes 55-71 and 148 ff and accompanying text, of sexual violence as constituting grave breaches of the Geneva Conventions, and violations of the laws and customs of war. See supra Chapter 3 note 64 and accompanying text. See infra Chapter 6 note 55See the discussion on sexual violence as torture infra Chapter 6 notes 55 ff and accompanying text.

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Women are more likely than men to flee a conflict zone and become refugees or displaced persons. 47 IHL neither addresses the conditions that confront women in camps for refugee or displaced persons, nor the other distinctive problems they face in these situations. There are no obligations imposed on any of the relevant parties or other actors to regulate such matters as the physical security of refugee or displaced women, the equitable distribution to them of food and other supplies and services, or to ensure their participation in decisionmaking about camp matters. By contrast, the conditions of other categories of persons who are forced to live in camp situations, especially prisoners of war, are comprehensively regulated. For example, prisoners of war must be provided with hygienic living conditions, in a secure location. 48 Their premises must be protected from dampness and have adequate heat and lighting. 49 Food rations for prisoners of war must be sufficient to prevent any weight loss or nutritional deficiency, and access to tobacco must be permitted. 50 Foodstuffs, soap and tobacco must be available for purchase, 51 and access to medical attention must be provided. 5 2 IHL also regulates the election of prisoner's representatives.53 IHL recognises the right of certain categories of persons to be issued with identity cards.54 Refugee women, however, are not covered by these provisions and have no legal right to individual documentation, such as ration cards and identification papers. 55 Furthermore, the return of refugees to their home following armed conflict is un-regulated by IHL. 5 ^

47

48 49 50 51 52 53 54

55

56

Refugees are not a specific category within IHL. In some circumstances they constitute protected persons within the meaning of the Fourth Geneva Convention and Protocol I. See Art 44 Fourth Geneva Convention, and Art 73 Protocol I. See also Art 70 Fourth Geneva Convention. See Arts 22 and 23 Third Geneva Convention. See Art 25 Third Geneva Convention. See Art 26 Third Geneva Convention. See Art 28 Third Geneva Convention. See Art 29 Third Geneva Convention. See Art 79 Third Geneva Convention. See for example, Art 27 First Geneva Convention (medical personnel of neutral countries), Art 40 Fist Geneva Convention (medical and religious personnel); Art 18 Second Geneva Convention (prisoners of war); Arts 20 (hospital staff) and 97 Fourth Geneva Convention (internees); Art 18(3) Protocol I (civilian medical and religious personnel). Refugee law governs the issue of identity papers to refugees in the territory of a contracting State, and provides a qualified right for refugees to receive travel documents. See Arts 27 and 28 Convention Relating to the Status of Refugees 1951 (189 UNTS 137). However, other types of documentation, such as ration cards are not included, the situation of displaced persons is not covered, and the issue of discrimination against women is not specifically addressed. However, see for example, Art 49 Fourth Geneva Convention (stipulating that protected persons evacuated by an Occupying Power, must be "transferred back to their homes as soon as hostilities in the area in question have ceased")-

104

A Gender View of the Shaping of IHL

Detention is another experience common to men and women during armed conflict. IHL regulates the conditions of detention and internment, and "special" provisions are designed to ensure the privacy of women in these situations, as well as care for pregnant women, maternity cases, and mothers of small children. 57 These provisions focus on-the modesty and chastity of women, and their child-bearing function. IHL does not expressly address the need for detained or interned women to be supplied with sanitary provisions for menstruation, or for women generally to have access to adequate reproductive health care. Widowhood, and the loss of other male family members, is a frequent and devastating outcome of armed conflict for women. There are rules of IHL providing for contact with family members, the tracing of missing persons, and the treatment to be accorded to the remains of those who have died while under the control of the opposing party.58 Overall, however, the existing provisions impose few specific obligations, and confer entitlements primarily on the State of whom the deceased is a national, rather than the next-of-kin. There is no explicit right for family members to recover the bodies of their loved ones, or to have mass graves exhumed and bodies identified. In the aftermath of conflict, there are no obligations to provide widows with financial, psychological, social, or other necessary assistance. Nor are the needs of wives of the "disappeared" addressed. As a result, women are left vulnerable to discriminatory practices at the domestic level. The economic impact of armed conflict on the civilian population is another area where IHL is silent. The Fourth Geneva Convention specifies that "protected persons" who have lost their employment as a result of the conflict, "shall be granted the opportunity to find paid employment", and if this is not possible, the Party is obliged to "ensure his support and that of his dependents."^ The requirement, although of some value to women dependents of "protected persons", is limited in its scope.^0 These provisions do not address the specific economic difficulties faced by women caught up in armed conflict. In particular, there are no obligations on States to provide assistance to women heads of households under their control, either during conflict, or in the aftermath of conflict. IHL regulates health care and access to other essential services for members of the armed forces who are wounded and sick,^1 prisoners of war,^2 or persons

57 58 59 60 61 62

See the discussion supra Chapter 3 note 73 ff and accompanying text. See the discussion supra Chapter 3 note 78 ff and accompanying text. See Art 39 Fourth Geneva Convention. For the scope of the Fourth Geneva Convention see supra Chapter 3 notes 39-41 and accompanying text. See First and Second Geneva Convention. See Third Geneva Convention.

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otherwise detained, interned, or in the hands of the opposing party.63 However, there are significant shortcomings in the provisions themselves, and the manner in which they are applied.^ Many of the biological needs of women are overlooked. Except in the case of pregnant women and maternity cases, there is no obligation to ensure sex-specific medical treatment. Moreover, IHL imposes no obligation on a Party to the conflict to ensure that women under its control have sufficient and equitable access to food, or to medical treatment for long-term injuries, such as those caused by landmines. Similarly, there is no obligation regarding sex composition amongst health professionals treating war victims. IHL is not concerned with the content of emergency relief, nor, generally speaking, with ensuring women equitable access to such supplies.1^ There are no rules regarding the provision of health-care for physical and psychological injuries, in the aftermath of conflict. The use of gender stereotypes during armed conflict by all parties, the media, and the international community generally, with all the attendant detriment to women, is unrecognised in IHL. Rather, the provisions of IHL contribute to detrimental representations of women, and to their inferior place in the hierarchy of the rules. There is no recognition in IHL of the way in which the experience of women of armed conflict varies widely between cultures and between individual women within those cultures. Nor is there any obligation to ensure adequate sex composition amongst personnel who are trained to facilitate the application of IHL.'''' The woman combatant is generally in a much more vulnerable position than that of her male equivalent. To some extent, IHL recognises the vulnerability of women combatants based on their biological differences, and provisions exist to ensure the modesty of women prisoners of war. Otherwise, it is assumed that the needs of the women combatant are identical to those of the male. It is rare, however, that the woman combatant would meet the norm described in the rules of IHL. The closest match would be to women in professional Western

63 64 65

66

See Fourth Geneva Convention, Protocol I and Protocol II. See the further discussion of interpretation and IHL infra notes 200 ff and accompanying text. To some extent, the Fourth Geneva Convention regulates collective relief for protected persons who are interned. See Art 109 (regarding the right of the Detaining Power to distribute and dispose of relief "in the interests of the recipients"); and Annex II (mandating the equitable distribution of supplies). However, gender considerations are not adequately addressed in these provisions and die general discrimination experienced by women in the context of the distribution of emergency relief, is not recognised. See also Art 70 Protocol I (discussed supra Chapter 3 note 70 and accompanying text). See for example, Art 6 Protocol I.

106

A Gender View of the Shaping of IHL

armies, but even they have distinctive characteristics and needs that are not acknowledged. IHL does not regulate the sexual harassment widely experienced by women combatants. Nor are there prohibitions against discriminatory military practices, such as using women for the most dangerous tasks, or forcing women combatants into marriage with their male colleagues. Finally, it is widely acknowledged that the participation of women improves the effectiveness of peacekeeping, and other similar operations, particularly when it comes to the treatment accorded to women civilians in the receiving country. IHL, however, is silent on the need to involve women in such activities. It may appear that some of the issues we have identified are unsuitable for regulation at the international level. However, such a response is largely predicated upon an ingrained acceptance of the existing boundaries of the law. IHL is replete with very detailed provisions concerning the supply of essential goods and services to certain categories of war victims, as well as the conditions in which they live. The treatment of prisoners of war, for example, is regulated down to the amount of Swiss francs to be advanced by the Detaining Power, and their right to receive relief shipments containing sports outfits.^ Two underlying characteristics of IHL help to explain the wide discrepancy between the protection that the regime offers and the reality of armed conflict for women. First, the closer the connection between a war victim and the main activity of war, that is, the hostilities, the greater are the rights and entitlements to safe conditions and essential goods and services under IHL. Prisoners of war benefit from the greatest protection in this context, followed by other persons detained, interned or under the control of the opposing side. Women traditionally largely fall outside these categories. They are more likely to be forced to flee the conflict or attempt to survive in their own communities. In these circumstances IHL offers little protection. Similarly, although the aftermath of conflict is particularly difficult for women, IHL is generally silent regarding humanitarian problems caused by armed conflict that arise after the hostilities have ended.^8 Secondly, IHL generally assumes that war related harms are inflicted only by the opposing forces. However, women are frequently at risk of suffering harm at the hands of their "own" side both during and after armed conflict. Having identified the discrepancy that exists between IHL and the reality of armed conflict for women, the remainder of the Chapter seeks explanations for the silences of IHL in relation to women and armed conflict.

67 68

Arts 60 and 72 Third Geneva Convention. See supra Chapter 3 for the personal and material field of application of IHL.

Women, Armed Conflict and International Law

4.

107

The Ideal of Woman as the Basis for IHL

IHL perpetuates a pre-existing ideal of women that is present in society generally. Moreover, it magnifies particular aspects of this stereotype. The ideal of woman that we see in IHL is not only gendered, but also culturally specific. She is primarily a Western, Christian construct. IHL, in common with all international law, has taken the experience of European States as its basis for the legal regime.® In practical terms, when scholars refer to IHL, it is the law regulating traditional armed conflicts between Western States that is being discussed. Although valiant efforts have been made, particularly by the ICRC, to make the law truly universal, it has not been an undertaking marked by a great deal of success7° The Western reality of warfare that the developing law of armed conflict recognised, was struggles between politically independent States with well organised, well equipped and highly trained professional armies. Although in fact a distorted and incomplete picture of the way warfare was actually experienced in these States, what is important in the present context is that these cultures had a distinctive, highly developed perception of the role of warfare and of the combatant.''1 The rules that developed to govern the conduct of armed conflict reflected this reality, and continue to do so to the present day in modern IHL. For example, the detailed rules for the treatment of prisoners of war, protection for the wounded and sick, and provisions for weapons control are all based to a large extent on chivalric notions.^2 The treatment of women in current IHL reflects the attitude towards women in these early times. They are incorporated into the category of the civilian, except in the case of motherhood, pregnancy and sexual violence. In the

69 70

71 72

See G Best, War and Law Since 1945 (1994) 17; and see G Draper, "The Interaction of Christianity and Chivalry in the Historical Development of the Law of War", (1965) 5 IRRC3. Gerald Draper writes of the difficulties identified by commentators in attempting to apply a legal regime based specifically on the Christian tradition of Western European States, to societies with different cultural traditions, Draper, ibid, at 3-4; and see M Ignatieflf, The Warrior's Honor (1998) 140, for a discussion of the challenges posed by the Taliban militia in Afghanistan to the fulfilment of the ICRC's mandate. See also, L. Zegveld, Armed Opposition Groups in International Law: The Quest for Accountability, (2000). See generally, M Keen, The Laws ofWar in the Late Middle Ages (1965); and Best, supra note 69, at 17. There are different views expressed by writers as to the influence of chivalry in modern IHL. All agree that the prohibition of dishonourable methods of combat is derived from chivalric standards, see, for example, Green, supra note 16, at 122; and A Roberts & R Guelff, Documents on the Laws of War (2nd ed, 1989) 5. Others such as Theodor Meron, describe a much broader influence for chivalric values in modern IHL, see T Meron, Bloody Constraint War and Chivalry in Shakespeare (1997) 11-15- See also Draper, supra note 69, at 7, 20-22; and generally Keen, ibid.

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latter context, a woman's honour, a highly artificial construct, steeped in cultural prejudice, is the basis for regulation.7^ The notion of women's honour that we find in IHL is a masculine construct that bears little relation to the reality of sexual violence for women.7^ Christian and chivalric principles have contributed much to the "honour" of women in IHL.75 In Chivalric tradition, women were at the centre of the highly elaborate precepts of romantic chivalry.7t" In this scheme, knights were the "natural" protectors of women who, in a portrayal that continues today in modern IHL, were weak, modest, docile, incapable of looking after themselves, and thus condemned to a highly stylised inferior role in society.77 One commentator describes the "protector-protected" relationship between knights and the demeaned "other" woman that was used to perpetuate Chivalric dominance.78 The chastity of women was particularly valued and in theory protected so as to ensure the purity of the male heir.79 The reality of life for women in these times appears far removed from this idealistic picture of shelter and protection.80 Moreover, this romanticism had its class overtones and the ordinary peasant woman was not the object of knightly protection.81

73

74

75

76

77 78 79 80 81

For example, the protections for women from sexual violence are couched in terms of their honour. Art 27(2) Fourth Geneva Convention contains the first provision specifically dealing with rape and requires that "[w]omen shall be especially protected against any attack of their honour, in particular against rape, enforced prostitution, or any form of indecent assault". See J Gardam, "An Alien's Encounter with the Law of Armed Conflict", in N Naffine & R Owens eds, Sexing the Subject of Law (1997) 233; C Niarchos, "Women, Men, and Rape: Challenges Facing the International Tribunal", (1995) 17 HRQ 649 at 672-6, and see the further discussion infra note 84 and accompanying text. The Special Rapporteur on Violence against Women, comments in her report that "[b]y using the honour paradigm ... stereotypical concepts of femininity have been formally enshrined in humanitarian law", Report of the Special Rapporteur on Violence Against Women, Its Causes and Consequences, In Accordance With Commission on Human Rights Resolution 1997/44, Ms Radhika Coomaraswamy, UN Doc E/CN.4/1998/54 (1998) [hereinafter Coomaraswamy 1998 Report]. In chivalric times, religion and chivalry were intertwined. The two coalesced in practice in the Crusades. The ideal of women in both these traditions was the Virgin Mary, see Draper, supra note 69, at 7-9. See for example, R Barber, The Knight and Chivalry (1970) 71-76. The concept of "courtly love" was also integral to the life of the chivalric knight, see S Painter, French Chivalry Chivalric Ideas and Practices in Medieval France (1957) 107-148. See J Johnson, Just War Tradition and the Restraint of'War (1981) 136; Draper, supra note 69, at 7; and M Keen, Nobles, Knights and Men-at Arms in the Middle Ages (1996) 33. See Johnson, ibid. See Painter, supra note 76, at 97-100. Ibid, at 101-103. Ibid, at 120-121.

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The honour of men, reflecting its broader sociological content, is a much more complex concept in IHL than that of women, and encompasses both mind and bodily attributes.82 The concept of honour and its manifestation in IHL in relation to combatants also owes much to the chivalric tradition, particularly the military chivalric tradition, known as the law of arms.8^ According to Keen the most enduring legacy of chivalry to later times is its conception of honour.8^ The man of honour "was a person of a particular social status and calling who kept on the right side of certain technical rules".85 For example, the honour of soldiers in the law of arms was a stylised, technical, and integral part of this regime. Enforcement of the law in these times relied on the sanction of "dishonour".8(" Under the law of ransom, for example, a defaulting captive was liable to the procedure of dishonour. Dishonour was a deadly insult and as such very effective in ensuring compliance with the law.8'7 There is much more that can be said about the honour of men from a gender perspective. For example, unlike women, it appears the honour of the combatant is not linked with his sexuality. To rape a man affects his honour, but it does so in that a man is treated like a woman, a quite distinctive rationale from that which underlies the dishonour that women experience from rape.88 The concept of "honour" of women (and of the male warrior) that we see in IHL, although European in derivation, is not merely a reflection of Western values.8^ Throughout the world, the value of women to men over the centuries has revolved around their honour, the defining characteristics of which are derived from the socially determined sexual and reproductive identity of women. 9° It appears that chastity and modesty is prized above all else in women

82 83 84 85 86 87 88 89 90

See Gardam, supra note 74, at 250. Draper, supra note 69, at 8, writes that honour and the bearing of arms were of fundamental importance to chivalry. See M Keen, Chivalry (1984) 294. Ibid, at 185. Ibid, at 20. Ibid, at 173-174. The same phenomenon of the infringement of men's honour in being treated as women, is apparent in the concept of humiliating treatment of prisoners of war, see the discussion supra note 67. For a discussion of the universality of the warrior's code of honour, see Ignatieff, supra note 70, at 116-118. See for example, Amnesty International, Pakistan: Honour Killings of Girls and Women (1999) AI Doc 33/18/99L; Moghaizel, "The Arab and Mediterranean World: Legislation Towards Crimes of Honor", in M Schuler ed, Empowerment and the Law: Strategies of Third WorldWomen (1986) 174 (in relation to crimes of "honor", that is, adultery and illegitimate sexual relations); R Coomaraswamy, "Custom, Religion, Ethnicity and Law", in M Schuler ed, Empowerment and the Law: Strategies of Third World Women (1986) 91 at 108.

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in most, if not all cultures. 91 If the "honour" of women is besmirched, their value to men decreases.92 The way in which prevailing views of women over the years have contributed to IHL, and to the priority accorded to the "male" combatant, finds expression in the forerunners of the modern rules protecting civilians, frequently referred to as non-combatant immunity. 93 Non-combatant immunity has a long and chequered history,9^ evolving against the background of the development over many centuries of Christian theories of the "just war".9^ There are many just war theories as most civilisations have had highly developed rules relating to the justness of the resort to war. However, the Christian theory of the just war formed the basis of the secular just war theory of such writers as Grotius and Vattel, and had a considerable impact on the development of the law of war, including the principle of non-combatant immunity. The Christian just war theory is a complex interplay of various religious, moral, and purely secular factors, and over the centuries has received a great deal of attention from theologians, historians and political commentators, although none of these studies have focussed on women. 9 ^ Nowadays, the idea that non-combatants should be spared as much as possible from the effects of warfare is based on considerations of humanity. 9 ? The origins and theoretical basis of the rules protecting non-combatants were not,

91 92

93

94

95

96 97

See J Stiehm, "Algerian Women: Honor, Survival and Islamic Socialism", in L Iglitzin & R Ross eds, Women in the World: A Comparative Study (1976) 229. See for example, initial Report of Guatemala submitted to the CEDAW Committee, CEDAW/C/Gua/1-2, 2 Apr 1991, extracted in H Steiner & P Alston, International Human Rights in Context (1996) 888,891. The early principle of non-combatant immunity has developed into a number of detailed rules in modern IHL. It is part of the Law ofThe Hague, and regulates the means and methods of warfare in relation to those persons who are regarded by the law as civilians. The modern form of noncombatant immunity includes the important prohibitions on the direct targeting of civilians and indiscriminate attacks. See the discussion supra Chapter 3 note 86 and accompanying text. The protection of victims of armed conflict, including non-combatants, is now dealt with by the socalled Law of Geneva. For an account of the evolution of non-combatant immunity, from its earliest foundations in primitive and ancient warfare to modern times, see R Hartigan, The Forgotten Victim: A History of the Civilian (1982). For a description of the development of the Christian theory of the just war and on the modern form of this theory, see J Johnson, Ideology, Reason and the Limitation of War (1975); P Ramsey, War and the Christian Conscience (1961); F Russell, The Just War in the Middle Ages (1975); M Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations (2nd ed. 1992). See for example, the sources cited ibid. The modern jurisprudential basis for the theory of non-combatant immunity developed from the idea of Rousseau, that war was a contest between States, rather than individuals. See ] Rousseau, The Social Contract and Other Discourses (Cole transl, 1973).

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however, concerned with protecting individuals. Noncombatant immunity functioned as a means of containing or limiting violence in the interests of society generally. The derivations of non-combatant immunity are also gendered, from the Chivalric tradition, based on the patronising of women,^8 to the canonical doctrine which primarily protected the Church's own, to the exclusion of women." During the era of the just war, Canon law, through such means as the "Peace of God", developed categories of persons who were immune from the effects of warfare.100 The distinction between combatants and non-combatants was drawn in the canonical doctrine on the basis of occupation. Clerics, monks and friars, for example, were "entitled to full security against the ravages of war".101 Although women had been included in Gratian's Decretum,102 on which the concept of certain categories of persons being immune from warfare was based, they were not included in the Peace of God. The basis of this immunity in the Canon tradition was self-interest- to protect the institution of Christianity. The secular Chivalric tradition similarly provided protection for other groups, including women. 103 Although the institution of chivalry led to restraints on the conduct of warfare and recognised the concept of non-combatancy, it was also based on self-interest — the preservation of the superior position of the knightly class. The knight, as we have seen, was the "natural" protector of women. Part of this protector/protected relationship depended on the exclusion of women from combat on the basis of their lack of physical strength to handle the weaponry of the time.10^ Thus, the distinction between non-combatants and combatants was drawn in Chivalric tradition between the "enemy" and the "innocents": the enemy were those who carried arms, the innocents did not. This differentiation created a class of inferior individuals requiring protection and thus ratifying the superior position of knightly men.

98 See Johnson, supra note 77, at 133-136. 99 See J Russell, A History ofMedieval Christianity: Prophecy & Order (1968) 25. 100 For a description of the "Peace of God", see Russell, supra note 95, at 39, and Hartigan, supra note 94, at 65-75. 101 Johnson, supra note 77, at 127. The Peace of God was drawn up during the reign of Pope Gregory IX and listed eight classes of persons who were entitled to full protection from the direct effects of warfare. Johnson in assessing the basis for this omission, concludes that it was either because the immunity of these classes of persons was already acknowledged and provided for under the rules of chivalry, or the result of the self-interest of the Church (at 132-133). 102 See Russell, supra note 95, at 70. 103 See Johnson, supra note 77, at 133-136. The focus of the military Chivalric tradition was on the regulation of the conduct of warfare between knights. For a description of the military code of chivalry, see Keen, supra note 84. See the further discussion infra note 127. 104 Ibid.

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Generally the acknowledgment of the experiences of women by developing theories of non-combatant immunity was rare. In as much as women were relevant in this context, it was in their roles as mothers and providers of the next generation of warriors. The exception is sexual violence against women. Rape in warfare appears to have been consistently unlawful over the centuries. 105 There is little evidence, however, that the law was at any stage taken seriously. In medieval times, for example, rape was regarded as part of the spoils of war and was a major incentive for continued fighting, especially in siege situations. 10 ^ The narrow vision of women that can be seen in Chivalric and Christian doctrines, and that formed the basis for the early rules regulating warfare, has continued into modern IHL. Women remain important for their chastity, modesty and child-bearing capacity. Although some forty two provisions of IHL specifically deal with women, they all do so from the perspective of women's relationship with others, and not as individuals in their own right. These are the attributes of women existing in society generally that are magnified in IHL. The recognition of the vulnerability of women to the effects of armed conflict remains centred around these "qualities".

5.

The Influence of the Military

It is commonplace to find modern IHL described as a compromise between humanitarian concerns and military considerations, with the suggestion that nowadays the influence of humanity predominates. 107 This view fails to adequately recognise not only the traditional role of the military in the origins and development of IHL, but its continued influence.108 The military has always played a pivotal role in the development of IHL, and the regime reflects this with its fundamental division between combatants and civilians. In contrast to

105 See for example, Green, supra note 16, at 23. 106 See Keen, supra note 84, at 121-122, and Meron, supra note 72, at 26 and 29-31; id, "Rape as a Crime Under International Law", (1993) 87 AJIL 424 at 425 (writing that rape had been prohibited for centuries by various national military codes and citing those of Richard II and Henry V). See also Green, supra note 16, at 23. 107 This tendency is particularly marked in the publications of the ICRC. For a general discussion of humanitarianism in the law of armed conflict, see H McCoubrey, International Humanitarian Law (1998) 40; T Meron, "The Humanisation of Humanitarian Law" (2000) 94 AJIL 239; and see also C Greenwood, "Historical Development and Legal Basis", in D Fleck ed, The Handbook of Humanitarian Law in Armed Conflict (1995), 129-133. 108 See C Jochnick & R Normand, "The Legitimation of Violence: A Critical History of the Laws of War", (1994) 35 Hani Int L] 49 at 58.

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human rights, the focus of which has been on conferring rights on individuals to protect them from arbitrary actions by the State, IHL primarily confers rights on States that are designed to further military efficiency. 1Q9 Thus, although the term IHL is the preferred term of the International Committee of the Red Cross (ICRC) to describe the law of armed conflict, it is misleading to the extent that it conveys an impression that these rules are based on purely humanitarian considerations.110 In fact, traditionally the rules have been based on the advantages in efficiency that States perceive asflowingfrom the regulation of warfare. Some writers have gone as far as to claim that "the laws of war have been formulated deliberately to privilege military necessity at the cost of humanitarian values".111 Others recognise that " [b]y war's very nature, the practices that become effective (rather than aspirational) law will be influenced decisively by the concerns of military specialists to protect their own personnel and assets and to use them effectively".112 The influence of humanitarian considerations on IHL first grew out of the humanitarianism movement of the nineteenth century. Today, this influence is represented by the regime of human rights. The United Nations Charter, with its background of the "scourge" of the Second World War and its emphasis on the protection of the individual, led to the growing convergence between these regimes.1 ^ The development in the lastfiftyyears of the principles that comprise human rights law has had a major influence on IHL, and indeed on international law generally. Increasingly IHL, in common with human rights law, is based on the requirements of humanity (although IHL cannot be explained simply in these terms) and parallel norms to that effect exist in both systems.11^ At the same time as the human rights movement was exerting its influence, the Charter

109 Set ibid. Cf Meron, supra note 107, at 251 (describing the rights conferred on individuals by IHL). 110 L Doswald-Beck & S Vite, "International Humanitarian Law and Human Rights Law", (1993) 293 IRRC 94 at 98, write that this is one reason for the preference of writers for the term the law of armed conflict, or the law of war, rather than humanitarian law. 111 Jochnick & Normand, supra note 108, at 50. 112 W Reisman & C Antoniou, The Laws of War: A Comprehensive Collection of Primary Documents on International Laws Governing Armed Conflict (1994) xxv. 113 For the influence of human rights on IHL generally and the developing relationship between die two regimes, see Meron, supra note 107. See also R Vinuesa, "Interface, Correspondence and Convergence of Human Rights and International Humanitarian Law", 1998 Yearbook of International Humanitarian Law (1999) 69; A Robertson, "Humanitarian Law and Human Rights", in Studies and Essays on International Humanitarian and Red Cross Principles in Honour of Jean Pictet (1984) 793; and G Draper, "The Relationship Between the Human Rights Regime and the Law of Armed Conflict", (1971) IIYHR 191. 114 See generally, T Meron, Human Rights and Humanitarian Norms as Customary Law (1989).

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ban on the use of force led to a perception that for States to continue to emphasise the development of rules regulating hostilities seemed somewhat too cynical in light of the illegality of war. Concentrating on the humanitarian component of the rules, however, reflected the growth in weapons of mass destruction and the emerging concern with human rights. The 1968 Conference on Human Rights in Teheran can be seen as the definitive event in the emerging relationship between IHL and human rights. ^5 Gerald Draper wrote that progress in the law of armed conflict "had come perilously close to stagnation before the impact of the movement for a regime of Human Rights was brought to bear". 116 Undoubtedly, the influence of humanitarian concerns is now making significant inroads into the dominant influence that the military have exercised in the evolution of IHL over the years. For example, for the first time a weapon in widespread use, the anti-personnel land mine, has been outlawed. 11 ^ Moreover, blinding laser weapons, a means of warfare seemingly with considerable potential, have been prohibited. 118 However, it remains the case that the military establishment of the State primarily determines the extent to which warfare is regulated and the content of the rules. 119 There appears to be no other area of international law where the influence of a group with such a vested interest is so strong, and the justification for their ends is the plea of "military necessity". Military necessity is used in different senses. It is consistently referred to as one of the general principles on which the law of armed conflict is based. 120 One of its earliest formulations is contained in Article 14 of the Lieber Code, drawn

115 See Resolution XXIII, Human Rights in Armed Conflict, adopted by the International Conference on Human Rights, Teheran, 12 May 1968. 116 G Draper, "Human Rights and the Law of War", (1972) 12 VirgJIL 326 at 336. 117 Convention on the Prohibition of the Use, Stockpiling, Production, and Transfer of Anti-personnel Mines. And their Destruction 1997. The Convention came into force on 11 Mar 1999, six months after the deposit of the 40th instrument of ratification. 118 Protocol on Blinding Laser Weapons (Protocol IV to the United Nations Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects), 13 Oct 1995119 To illustrate the power of the military in determining what the law will be, one only has to consider their role in the law making processes. For example, they have played a significant role in preventing the United States to date from ratifying Protocol I. See G Aldrich, "Prospects for United States Ratification of Additional Protocol I to the 1949 Geneva Conventions", (1991) 85 AJIL 1; and see T Meron, "The Time has Come for the US to Ratify Geneva Protocol I", (1994) 88 AJIL 678. 120 For example, Green describes military necessity as allowing for actions required to achieve victory but within the restraints imposed by law, see Green, supra note 16, at 120, and see Pilloud et al eds, supra note 10, at 392-396 (in relation to military necessity and means and methods of combat).

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up in 1863 during the American Civil War. 121 Its constraining role in this context is apparent: "[military necessity ... consists in the necessity of those measures which are indispensable for securing the ends of the war, and which are lawful according to the modern law and usages of war." Clearly it was envisaged that there were limits to legitimate violence that were additional to those contained in existing legal rules. Military necessity was thus a real restraint on State action. As it was originally conceived it was not seen as in opposition to humanitarian values, indeed, quite the reverse. Military necessity, however, was to acquire a somewhat disreputable air, particularly in the guise of the doctrine of "kraegraeson", advanced by belligerents to justify their failure to comply with the applicable rules of armed conflict in situations of pressing military necessity.122 Its articulation underwent a subtle change. Nowadays military necessity is often characterised as in conflict with humanitarian values rather than as a general limitation on the resort to violence in armed conflict. Consequently, it has never really developed its potential and arguably has no substantive content. In the words of one commentator, although "military necessity is formally acknowledged as one of the primary foundations of the modern law of war" (similarly to the Martens Clause) its limiting role has been largely forgotten.12^ Whatever the legal content of military necessity, it is frequently relied on as a rhetorical tool to limit improvements in the protection offered to victims by IHL that may have military implications. It is in this sense that the term is being used in this work. A study of IHL reveals that developments in the protections offered to all victims of armed conflict, both combatants and non-combatants, have been in spite of the military rather than at its instigation. Some restrictions in the form of rules protecting combatants have been tolerated, such as weapons causing unnecessary suffering,! 2^ and the extremely detailed provisions protecting prisoners of war.12^ These rules may appear humanitarian in nature but they

121 General Orders No 100, 24 Apr 1863 (Reproduced in L Friedman, The Law of War, A Documentary History, Vol 1 (1972) 158). 122 For a discussion of the attitude of war crimes tribunals to pleas of military necessity, see N Dunbar, "Military Necessity in War Crimes Trials", (1952) 29 Brit YB Int'lL AA2. 123 See B Carnahan, "Lincoln, Lieber and the Laws of War: The Origins and Limits of the Principle of Military Necessity", (1998) 92 AJIL 213 at 230. 124 It is doubtful whether any weapons are illegal per se on the basis of this principle. See sources cited supra Chapter 3 note 100. 125 The Third Geneva Convention, in relation to prisoners of war, has some 143 Articles and five Annexes and goes to the lengths of stipulating what should be available in the prison canteen. For a study of the long and complex history of the rules protecting prisoners of war, see generally, A Rosas, The Legal Status of Prisoners of War (1976).

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also are consistent with military considerations.12^ By contrast, there is no obvious military advantage to be gained in protecting civilians or women, in fact quite often the reverse.12'7 In the development of IHL, humanitarian considerations have always taken second place to a plea of military necessity, especially when the proposed changes are to improve the protection offered to non-combatants. Despite the appalling suffering of civilians in armed conflict from the development this century of weapons of mass destruction, it was not until the influence of human rights began to make its impact on IHL that steps were taken to improve the protection offered to civilians by IHL. These advances have evoked considerable opposition from the military establishment of States. 128 The influence of military necessity is not restricted to the development of the rules, but also affects their application. As one commentator writes: "[t]o commanders in the field, military necessity becomes a particularly attractive line of argument if an action of dubious legality holds out the prospect of saving their soldier's lives time and again one encounters instances where to redress battlefield casualties increased pressure was put upon civilians".129 Part of the contribution of the military to IHL has been to sustain its distinctive vision of woman and to perpetuate its failure to address broader aspects of women's lives. The relationship between militarisation, the military, and gender roles, is recognised as of fundamental significance by many feminist writers. 130 Cynthia Enloe regards this focus on the social construction of gender, and "how notions about masculinity and femininity have promoted and sustained the military", as a major contribution of feminism to the analysis of war and peace. 131 The military has been described as constituting a "masculinity cult": a means of reinforcement of gender identification for men. 132 The essence of what

126 See Jochnick & Normand, supra note 108, at 53-54, 68. Cf a traditional description of the humanitarian ideal underlying the law of armed conflict and its relationship with military necessity by G Draper, "The Development of International Humanitarian Law", in International Dimensions of Humanitarian Law (1988) 67. See also Doswald-Beck & Vite, supra note 110, at 95-101. 127 So, for example, the rape of the enemy's women has traditionally been regarded as a perk of warfare and an inducement for the combatant to continue fighting, see Keen, supra note 84, at 121122; andTMeron, Henry's Wars and Shakespeare's Laws (1993) 111-112. 128 See for example, W Hays Parks, "Air War and the Law of War", (1990) 32 AFLR 1 at 89-224; and Aldrich, supra note 119, at 11-19. 129 P Kennedy & G Andreopoulos, "The Laws of War: Some Concluding Reflections", in M Howard et al eds, The Laws of War: Constraints on Warfare in the Western World (1994) 218. 130 See for example, C Enloe, The Morning After: Sexual Politics After the Cold War (1993). 131 Ibid, at 73. Ann Scales regards militarism as a prime item on the feminist agenda and in "fundamental symbiosis with gender oppression", A Scales, "Militarism, Male Dominance and Law: Feminist Jurisprudence as Oxymoron" (1989) 12 Harv Women's LJ 25 at 26. 132 See Enloe, supra note 130, at 73.

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it is to be male can be found in the warrior who defends the security of the State. This gendered version of the male'33 is sustained through comparison with other devalued forms of masculinity 1 ^ and femininity. 1 ^ To date, scant regard has been paid to the role that IHL plays in reinforcing these constructions of masculinity and femininity. The influence of gender stereotypes in IHL is manifest in the division between combatants and civilians on which the whole system is based. All civilians are affected by this distinction but it has particular implications for women. IHL regulates the conduct of a range of participants in armed conflict but the major division drawn in its rules is that between combatants and civilians. Taken at face value, this distinction appears to be based on the type of activity performed by the individual concerned. Even the fact that there are far more rules protecting combatants than non-combatants is explicable.1 ^ Such an imbalance in itself does not render the rules unsatisfactory. From a humanitarian perspective, as well as from that of military efficiency, it is clear that armed conflict needs regulation to mitigate its horrors for combatants. Moreover, many of the situations that require legal constraints are specific to combatants, such as the treatment of prisoners of war, the wounded and sick in the field, and weapons causing unnecessary suffering. 1 ^

133 For a discussion of the gendered warrior, see J Tickner, Gender in International Relations: Feminist Perspectives on Achieving Global Security (1992) 6-7, 40. See also S Ruddick, "Mothers and Men's Wars", in A Harris & Y King eds, Rocking the Ship of State, Towards a Feminist Peace Politics (1989) 77. The relationship between men's sexuality and war, and sexism itself, is an integral part of this analysis. See for example, S Brownmiller, Against Our Witt: Men, Women and Rape (1975); N Hartsock, "Prologue to a Feminist Critique of War and Politics", in J Stiehm ed, Women's View of the Political World of Men (1984) 123, and see generally, B Reardon, Sexism and the War System (1985); and R Morgan, The Demon Lover: On the Sexuality of Terrorism (1989). The threat that constructed feminine values pose for this idealised form of masculinity, is described by Tickner at 39 (discussing the writings of Machiavelli), and Reardon at 30-31, and 34-35 (although Reardon seems to accept that feminine values are not merely constructs but inherent feminine values (at 4)). 134 For example, homosexuality, see Reardon, ibid, at 30. The uproar in the United States' military establishment over attempts by President Clinton to lift the ban on the participation of homosexuals in the armed forces, illustrates this point. 135 See Tickner, supra note 133, at 6-7, and see also at 38-39. See also the example of this phenomenon provided by a leading commentator, where he describes humiliating work for a prisoner of war, as "being made to do work that is normally only done by women". Green, supra note 16, at 194, note 47'. 136 For a discussion of die privileging of the combatant by IHL, see J Gardam, "Gender and NonCombatant Immunity", (1993) 3 Transnational Law & Contemporary Problems 345 at 351-355. The same phenomenon can be observed in relation to children, with the focus of efforts being attempts to regulate the use of child combatants. See G van Bueren, The International Law on the Rights of the Child (1995). 137 The regulation of weaponry in some contexts, however, is of even greater significance to civilians than combatants. An example is landmines. See Human Rights Watch, Landmines: A Deadly Legacy (1993), and see the further discussion of this issue supra Chapter 3 note 100 and accompanying text.

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It is not, therefore, the distinction between combatants and civilians per se that warrants criticism, nor the fact that there are more rules protecting combatants, it is that on closer examination we can see that the division between combatants and civilians has a gender component which incorporates an assumption as to the value of lives. ^8 The stereotype of the male warrior, and the preference accorded to him, finds its way into the structure of IHL in the privileging of the life of the combatant. Although the combatant is frequently expendable in the interests of a perceived military advantage, the rules priorotise their protection as being of more value than civilians. The justification for this state of affairs is the demands of military necessity. The function of military necessity in IHL needs to be viewed as part of the broader framework of not only the relationship between militarism, sexism, and patriarchy, but most significantly in this context the demands of national security. !39 National security, the defence of the State, determines to a large extent the content of IHL and what limitations States are prepared to tolerate on their freedom of action during war. Military necessity is used to achieve the pre-eminence of national security over other factors, such as the human rights of all civilians caught up in the conflict. Its demands ensure that restrictions on the conduct of warfare are limited by what is seen as necessary for the defence of the State, or in the case of recent collective action, the achievement of military victory. Military necessity is taken as a given, military lawyers use it without further explanation to justify the impracticality of efforts to improve the protection of all victims of armed conflict. However, it is not a neutral yardstick and incorporates a hierarchy of values. It assumes that the military victory of the State is pre-eminent. From this flows the seemingly logical value judgement that the life of the combatant is more important than that of the civilian, even more so if that civilian belongs to the "enemy" State. Therefore, one of the major factors in the assessment of military necessity is the question of combatant casualties. The military

138 The division between combatant and civilian is the legal reflection of the dichotomy observed by feminist writers in international relations between the protector and the protected. See V Peterson, "Security and Sovereign States: What is at Stake in Taking Feminism Seriously", in V Peterson ed, Gendered States: Feminists (Re)Visions of International Relations Theory (1992) 31 at 49-56; and J Stiehm, "The Protected, the Protector, the Defender", in J Stiehm ed, Women and Men's Wars (1983) 367. 139 The gender attributes of the notions of national security and the State itself have been subjected to scrutiny by feminists, see Reardon, supra note 133; Hartsock, supra note 133; C Enloe, Bananas Beaches and Bases, (1989); R Grant & K Newland eds, Gender and International Relations (1991); Peterson, ibid; and Tickner, supra note 133. Cf M Harrington, "What Exactly is Wrong with the Liberal State as an Agent of Change?", in V Peterson ed, Gendered States: Feminists (ReJVisions of International Relations Theory (1992) 65.

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resists strongly the notion that combatants should assume risks to protect the civilian population.1^0 The arguments of military necessity have had the most influence in relation to the regulation of the means and methods of warfare, such as the rules regulating indiscriminate bombardment and weapons limitations. The regulation of events occurring outside the conflict, such as during occupation, or when participants are hors de combat and no longer a threat to the other party, rarely directly raise considerations of military necessity. Nevertheless even in these latter areas the law is proportionally far more highly developed in relation to combatants.1^1 Civilians, however, are at great risk during the conduct of warfare itself, as evidenced in the campaign of aerial bombardment adopted by the coalition forces in the Persian Gulf conflict (1990-91).^2 The regulation of the conduct of hostilities acutely raises considerations of military necessity and attempts to improve the protection of civilians in such circumstances have always faced the difficult task of reconciling such protection with the demands of the military. 143 So far in the discussion, women have been equated with civilians generally. Women, however, are doubly disadvantaged as civilians by the masculine nature of the military and its pervasive influence on the content of IHL. In common with male civilians, women experience the effect of the prioritising of the combatant in not only the actual rules of IHL, but also in their interpretation and application. Additionally, at a more subtle and pervasive level, the perception of women in military culture diminishes the likelihood that their needs will be accorded equal consideration with that of either combatants or male civilians. It is notorious that methods employed to train soldiers for battle rely upon the reinforcement of masculine aggression that tends to promote sexist attitudes towards women. ^4 Generally, women are constructed in demeaning and degrading ways by military institutions around the world to achieve this end. ^5 The priority accorded to the combatant in IHL is illustrated by the fact that a State is at liberty to plan its campaign, including its preferred method of warfare, in order to reduce its combatant casualties, without infringing the

140 141 142 143 144 145

See the further discussion infra notes 146 Brand accompanying text. See the further discussion infra note 185 and accompanying text. See infra note 151 and accompanying text. See for example, Hays Parks, supra note 128. See Coomaraswamy 1998 Report, supra note 74, at para 1(2). See for example, G Dyer, War (1986) 103 (discussing the use of the female character "Suzie", short for "Suzie Rottencrotch", in training the US Marine Corps).

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requirements of IHL. ^ 6 As things currently stand in IHL, there is no requirement that a State consider the effect of such a policy on the civilian population of the opposing State. The prohibition on indiscriminate attacks, or the requirements of proportionality, do not require a State to choose the method of attack which will result in the least civilian casualties to the other side.1^7 A State has considerable lattitude to prioritise the minimisation of its own combatant casualties, before it will infringe the rule. The failure of IHL to regulate policies that aim to minimise a State's own combatant casualties is exacerbated by the fact that the proportionality equation in the law on the use of force, that could perform this function, does not do so in reality. Proportionality is part of the legal regime of both the law on the use of force and IHL. 1 ^ 8 In the former, it determines the limits on a States overall forceful response, and in the latter, the balance to be struck between the achievement of a particular military goal and the cost in terms of lives. ^ 9 To date, however, proportionality in the context of the legality of the use of force, has primarily served as a rhetorical tool to support whatever view is taken as to the morality of a particular resort to force.15° Its potential to protect the civilian population from the devastating effects of modern armed conflict has never been exploited. The possible effects on the civilian population of the choice of a campaign of aerial bombardment is apparent from the Persian Gulf conflict (1990-91). This method of warfare rather than a ground assault, was dictated to some extent by the perceived need on the part of the coalition allies to keep their own combatant casualties to a minium. Their choice was made more acceptable by the consensus amongst States as to the illegality of Iraq's invasion of Kuwait. The phenomenon of prioratizing combatants lives in "morally", (if not always legally), justifiable resorts to force, can also be seen in the 1999 Kosovo conflict, in the "zero casualties" policy of the NATO forces. ^

149 See Roberts & GuelfF, supra note 72, at 2. See also M McDougal & F Feliciano, The International Law of War: Transnational Coercion and World Public Order (1994) 241 -244 for their definition of proportionality in the ius ad helium; and W O'Brien, The Conduct of'Just andLimited'War(1981) 27-31. 150 Cf the conclusions reached as to the legality of NATO's forceful actions in Kosova, by C Chinkin, "Kosova: "A Good or Bad War?", (1999) 93 AJIL 841 at 844-845; and M. Reisman,"Kosovo's Antinomies", (1999) 93 ASIL 860, at 861-862. Professor Chinkin, however, transcends rhetoric, and provides an analysis of the factors that she regards as part of the proportionality equation, that were not satisfied by NATO's response in Kosova. See also M Reisman & D Stevick, "The Applicability of International Law Standards to United Nations Economic Sanctions Programmes", (1998) 9 EJIL 86 at 129. 151 See for example, R Falk, "Kosova, World Order, and the Future of International Law", (1999) 93 AJIL 844-845.

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In this latter instance, however, the issue was raised as to the compatibility of the reliance on air power by the NATO forces in Kosovo, with the requirements of IHL !52 Moreover, it was argued by some commentators that the failure by NATO to send in ground forces not only failed to prevent, but in fact accelerated die ethnic cleansing committed by Serb forces. 153 "Phe Geneva Conventions and Protocol I require States to respect and ensure respect for IHL. 1 5 4 NATO arguably failed to comply with this requirement in that their actions allowed Serb forces to breach IHL. 1 5 5 One of the most discouraging aspects of the conduct of the Persian Gulf conflict (1990-91) in particular was the acceptance that rules existed, that they were obeyed and that the protection of civilians was taken very seriously. 156 When one contemplates the actual results of this conflict, such assertions evoke a feeling of despair about the ability of law to regulate the conduct of warfare. But this despair is misplaced. It is not the inherent limitations of law that is the problem, but who makes it, what result it is intended to achieve, and how it is applied. It is not inevitable that the achievement of military goals requires the sort of civilian casualties that were seen in the Persian Gulf conflict. Nor is it inevitable that combatant lives should be always preferred over those of civilians. The unspoken assumption that male combatants lives are to be priorotized is justified on the basis of military necessity. The perspective of the military is not immune to challenge. It assumes war is inevitable and that soldiers are performing a necessary, thankless public duty. But this is not a universal truth. Such assumptions need to be challenged, and the various perspectives on war and the military recognised, in order to allow IHL to better perform its task of

152 See for example, A Rogers, "Zero-Casualty Warfare", (2000) 837 IRRC 165 (discussing the content of the legal obligation to verify the military nature of a target). 153 See for example, Draft Special Report by V Kroning, Kosovo and International Humanitarian Law (15 Oct 1999) paras 26-27, Civilian Affairs Committee, NATO Parliamentary Assembly, and see generally, Report on the Human Rights Situation involving Kosova, submitted by Mary Robinson, High Commissioner for Human Rights, UNHCHR Geneva, 30 Apr 1999; and Human Rights Watch, Civilian Deaths in the NATO Air Campaign (2000). 154 See generally, L de Chazournes & L Condorelli, "Common Article 1 of the Geneva Conventions Revisited: Collective Interests", (2000) 837 IRRC67. 155 See Human Rights Watch, supra note 153; and see de Chazournes & Condorelli, ibid. 156 See US Department of Defence, "Report to Congress on the Conduct of the Persian Gulf War, Appendix on the Role of the Law of War", (1992) 31 ILM 612. Commentators have not been entirely uncritical of the conduct of the campaign. See for example, O Schachter, "United Nations Law in the Gulf Conflict", (1991) 85 AJIL 452 at 465; B Weston, "Security Council Resolution 678 and Persian Gulf Decision Making: Precarious Legitimacy", (1991) 85 AJIL 516 at 529; and J Gardam, "Non-Combatant Immunity and the Gulf Conflict", (1992) 32 VirgJIL 813. Most of the criticism however, has been directed at Iraq's conduct.

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minimising the effects of war. The debate must widen so as to include consideration of the effects on the lives of women of the emphasis in IHL on the protection of combatants.

6.

The Field of Application of IHL157

One of the major contributing factors to the ineffectiveness of IHL is the reality of modern armed conflict. Modem armed conflict involves the whole population and its effects are far reaching and long-term. Civilians nowadays constitute approximately ninety percent of the casualties in conflicts.158 These statistics are a reflection of the increasing difficulty in distinguishing between combatants and civilians with the advent of weapons of mass destruction. Moreover, the majority of the conflicts that occur today are civil in nature. Not only is IHL inapplicable in such conflicts, apart from some rudimentary provisions (although there are recent signs of change)' 1 ^ but the distinction between civilian and combatant that is integral to IHL knows no place in the type of warfare that characterises these struggles.1^0 The endemic nature of these latter conflicts highlights the irrelevance of a system designed primarily for international armed conflicts. Increasingly, commentators are focusing on the unreality of the rigid divisions between IHL, human rights law, and refugee law.1''1 IHL only provides protection to civilians from the effects of hostilities during the actual period of such hostilities and when they are in the power of the enemy. IHL, therefore, is

157 See the discussion supra Chapter 3 notes 28 ff; and see generally, E Kwakwa, The International Law ofArmed Conflict: Personal and Material Fields of Application (1992). 158 See The Impact ofArmed Conflict upon Children: Report submitted pursuant to the resolution adopted by the General Assembly A/RES/48/157 to the Fifty First Session of the United Nations General Assembly, Ms Graca Machel, UN Doc A/51/306 (26 Aug 1996) para 24. For an overview of the situation in relation to armed conflicts in 1998, see Elusive Questfor International Peace and Security, UN Doc SC/6626 (12 Jan 1999) and see also Statement by the President of the Security Council requesting the Secretary General to report to the Council on ways to improve the physical and legal protection of civilians in situations of armed conflict, UN Doc S/PRST/1999/6 (1999). See also M Sollenberg ed, States in Armed Conflict 1996(1997). 159 The conventional provisions governing non-international armed conflicts are common Art 3 to the four 1949 Geneva Conventions and Protocol II. In more recent times, it appears that these conventional rules have been supplemented by customary norms. See H McCoubrey, International Humanitarian Law (2nd ed, 1998) 253-275 (for a description of the conventional rules of IHL applicable in non-international armed conflicts). 160 See Draper, supra note 122, at 77-78; and Ignatieff, supra note 70, at 124-127. 161 See generally, V Gowlland-Debbas ed, The Problems of Refugees in the Light of Contemporary International Law (1995); and UNHCR, The State of the World's Refugees (1993).

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seriously hampered both by its narrow focus and its limited scope of application, and fails to meet the challenges of modern armed struggles. This restricted coverage is ameliorated to some extent by other branches of international law that increasingly intersect with IHL. Nowadays, there are four categories of international law that may be relevant to individuals in situations of armed unrest.1*^2 First, there are situations of internal disturbances and tensions, such as riots, and isolated and sporadic acts of violence,1(^3 in which only human rights norms are applicable.1^ Secondly, there are higher intensity non-international armed conflicts, that are governed by some provisions of IHL and by human rights norms. ^5 Thirdly, there are international armed conflicts where the detailed rules of IHL and, to a limited extent, human rights norms operate. ^ Fourthly, all the above situations may lead to peoples fleeing the conflict, and refugee law may then become relevant. Increasingly, there is a perception that human rights norms can compensate for the deficiencies of IHL. ^^ Human rights norms currently can achieve only so much in times of armed conflict. They are designed to operate during times of peace and regulate the relations between a State and its own citizens.1^8 They can, and do supplement IHL, particularly during times of civil conflict.^9 However, the issues with which these norms deal take on new forms in the midst of the disruption caused by armed conflict, a factor that needs to be reflected in their content. Moreover, even in the context of such conflicts where they have

162 See supra Chapter 3 notes 28-41 and accompanying text, and see Report of the Representative of the Secretary-General, Mr Francis M. Deng, submitted pursuant to Commission on Human Rights Resolution 1995/57, Compilation and analysis of Legal Norms, UN Doc E/CN.4/1996/52/Add.2 (1996) [hereinafter Deng 1996Report]; and see also K Partsch, "Human Rights and Humanitarian Law", in R Bernhard ed, Encyclopedia of Public International Law, vol 2 (1995) 910. 163 These are the conflicts excluded from the coverage of Protocol II. See Art 1 thereof. 164 See generally, T Meron, Human Rights in Internal Strife: Their International Protection (1987). 165 For the definition of these conflicts, see supra Chapter 3 notes 32-33 and accompanying text. 166 See supra Chapter 3 notes 28-30 and accompanying text. 167 For a discussion of the relationship between IHL and human rights, see the sources cited supra note 113. 168 See C Greenwood, "Scope of Application of Humanitarian Law", in D Fleck ed, The Handbook of Humanitarian Law in Armed Conflicts (1995) at 102. 169 For example, in common with IHL, human rights norms prohibit, amongst other things, the carrying out of the death penalty on pregnant women (Art 6(5) International Covenant on Civil and Political Rights UNGA Res 2200 (XXI) (1966), (1967) 6 ILM 368 [hereinafter ICCPR]), torture and cruel inhuman and degrading treatment (Art 7 ICCPR; and Art 8(1) Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment UNGA Res 39/46 Annex (1984), (1984) 23 ILM 1027), slavery (Art 8(1) ICCPR). Human rights norms also mandate the humane treatment of detained persons (Art 10 ICCPR), and the right to a fair trial (Art 14 ICCPR).

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more to offer, human rights norms do not bind non-state actors,1'70 and except for a basic core of rights, human rights norms can be derogated from during armed conflict.171 IHL is thus of fundamental importance in so many situations of violence that occur in today's world. Despite these limitations, human rights norms do address some of the problems that women experience as a result of armed conflict. They guarantee the right to an adequate standard of living, (including health, food, clothing, housing, medical care, social services, and security in the event of widowhood),17-^ the right to work (including access to training programmes), 173 and the prohibition of war propaganda. 17 ^ Further, CEDAW expressly addresses issues such as trafficking in women, the exploitation of prostitution of women, 175 equal access to education and training, 176 equality of rights in employment, (including free choice of profession),177 equality of access to health care, (including family planning), 178 equal access to credit and finance,17^ and the difficulties faced by women responsible for the economic survival of their families.180 Any outsider considering the legal regimes that may become applicable as a result of armed conflict, could be forgiven for concluding that they had been devised with scant regard for the reality of people's experience of armed conflict.181 They would be correct. Indeed, IHL itself reflects its provenance as one of the most ancient parts of international law. Its underlying structure developed in the nineteenth century when the view prevailed that international law was

170 However, the concept of responsibility of non-State actors for violations of human rights norms is a developing area; d Deng 1996 Report, supra note 162, at para 38, footnote 73. 171 The non-derogable human rights include the right to life; freedom from torture and other inhuman or degrading treatment or punishment; freedom from slavery; and the non-retroactivity of penal laws. See Vinuesa, supra note 113, at 87-90 (for a discussion of non-derogable human rights). 172 See for example, Art 25 Universal Declaration of Human Rights UNGA Res 217 A (III) (1948) [hereinafter UDHR]; Arts 11, 12 International Covenant on Economic, Social, and Cultural Rights UNGA Res 2200 (XXI) (1966), (1967) 6 ILM 360 [hereinafter ICESCR]; and Art 5(e)(iii) and (iv) International Convention on the Elimination of all Forms of Racial Discrimination 1966 (660 UNTS 195) [hereinafter CERD]. 173 See for example, Art 23 UDHR; Art 6 CESCR; Art 5(e)(i) CERD. 174 See Art 20 ICCPR. 175 See Art 6 CEDAW. 176 See Art 10 CEDAW. 177 See Art 11 (b) and (c) CEDAW. 178 See Art 12 CEDAW. 179 See Art 13 CEDAW. 180 See Art 14 CEDAW. 181 For a similar observation in the context of International Criminal Law, see S Ratner, "The Schizophrenia of International Criminal Law", (1998) 33 Tex ILJ 237.

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designed exclusively to serve the interests of the State. 182 To a large extent it retains this characteristic today. Categorisation of course is a characteristic of law generally, but it impacts particularly harshly on individuals affected by armed conflict and other catastrophes. 183 Women's experience of armed conflict also graphically illustrates the random and unsatisfactory nature of these boundaries of IHL. 18 ^ For example, IHL predominantly operates only during periods of armed conflict. Apart from the provisions of the Fourth Geneva Convention and Protocol dealing with civilians in occupied territories, IHL does not concern itself with the aftermath of conflict. 185 The framework of IHL has been developed primarily to reflect the needs and aspirations of men, or a certain class of men. Traditionally, it is during hostilities or when they are hors de combat, that male civilians and combatants are most seriously affected by armed conflict. They are most at risk of death, injury, torture, summary execution and mistreatment generally, during hostilities or when wounded, sick, or prisoners of war. Men are more likely to be killed or wounded in fighting, or summarily executed and mistreated when falling into the power of the enemy, either as prisoners of war or as civilians. Although vulnerable during conflict, women have a distinctive (and in many ways harsher) post-conflict experience than that of men. IHL does not reflect this reality. Women, generally speaking, are more likely to initially survive the hostilities, only to then experience continued sexual violence, starvation and other hardships. 186 One way to illustrate the differential effect of categorisation on women is to take an existing provision of IHL, in this case the requirement of proportionality, and see how its scope of operation has been drawn in a way that overlooks the particular impact of armed conflict on women.

182 For a history of the development of the law of armed conflict, see Green, supra note 16, at 18-51. 183 Recent attempts have been made to address the plight of internally displaced persons, who are a good illustration of the problems flowing from categorisation. "Displaced peoples" have been defined as "persons or groups of persons who have been forced to flee or obliged to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalised violence, violations of human rights or natural or humanmade disasters; and who have not crossed an internationally recognised State border". See Deng 1996 Report, supra note 162. 184 For an analysis of the impact of the distinction between international and non-international armed conflicts for women, see H Charlesworth, "Feminists Methods in International Law", (1999) 93 AJIL 379 at 388-390. 185 See supra Chapter 3 note 28-41 and accompanying text. 186 See the detailed discussion of these phenomena supra Chapter 2 generally. Similar arguments have been made as to how the definitions of torture and of refugee status do not reflect women's experience of gender violence.

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The treaty rule of proportionality in Article 51(5)(b) of Protocol I prohibits attacks if they "may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated". 187 Neither this conventional rule, nor its customary counterpart, require that factors such as long-term civilian casualties of attacks resulting from starvation and disease, be taken into account in determining what is a disproportionate attack. 188 Neither are commanders required to assess to what extent attacks will lead to the displacement of the civilian population and the creation of a refugee problem. To some extent these factors might be regarded as more appropriately the province of the law on the use of force. There is considerable scope for a critique, from the perspective of the impact on women, of the existing requirements of proportionality in the law on the use of force. Any use of force, whether byway of self defence, humanitarian intervention, or to restore international peace and security, must be measured against the legitimate aims of the response. Factors such as damage to the civilian population as a whole, to the territory and infrastructure of the State, and to the environment, and also the level of destruction of the enemy forces, are relevant in this assessment. Many of the experiences of women arising from armed conflict could, theoretically, contribute to this balancing process. As things stand, however, the long-term effects of attacks and the potential dislocation of civilians for example do not appear to be limiting factors in either the law on the use of force or IHL. This failure to recognise and take account of the whole picture of what happens after an armed attack affects women distinctively. The use of economic sanctions also illustrates the increasingly random impact of the boundaries within which IHL operates. 189 The effects on women of this phenomenon are distinctive and unacknowledged. On several occasions since the end of the Cold War, sanctions have been associated with military enforcement actions of the Security Council, as an integral part of the overall

187 See the further discussion of Art 51(5)(b) supra Chapter 3 note 97 and accompanying text. 188 The requirement in Arts 51(5)(b) that "damage to civilian objects" be part of the proportionality equation, could arguably be relevant in this context. However, much of the starvation and disease in modern armed conflict arises from attacks on dual use targets that are regarded as military targets under the law. 189 For a discussion of transcending the boundaries of human rights law in the context of economic sanctions, see Committee on Economic, Social and Cultural Rights, General Comment No 8 The Relationship between Economic Sanctions and Respect for Economic, Social and Cultural Rights, UN Doc E/C. 12/1997/8 (5 Dec 1997).

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solution to international conflict.190 The deleterious impact of economic sanctions on the civilian population is documented.191 The particular effects of such measures on women, however, is largely overlooked, although graphically illustrated by the Persian Gulf conflict (1990-91), where a mandatory sanctions regime has continued long after the cessation of armed hostilities.192 There are no rules of IHL that specifically regulate economic sanctions during armed conflict. 193 Some provisions of the IHL are, however, relevant in this context. Starvation is a prohibited method of warfare under Article 54 of Protocol I and Article 14 of Protocol II, and is arguably reflected in custom. 1 ^ Article 70 of Protocol I provides for relief actions in certain circumstances. Additionally, Articles 23 and 55 of the Fourth Geneva Convention impose certain obligations in relation to the supply of essential supplies to the civilian population. However, these rules only apply while the armed conflict is in progress, or during occupation in the case of Article 55 of the Fourth Convention. After the conflict there is arguably no relevant law.195 Thus the economic sanctions still in place against Iraq, as part of the overall solution to the threat to international peace and security posed by that State, are outside any rules of IHL. Furthermore, the source of these sanctions is the powers of the Security Council under Chapter VII of the United Nations Charter. Decisions of the Security Council under Chapter VII impose mandatory obligations on States. Under Article 103 of the Charter these obligations prevail over any other treaty obligations of States, including those of IHL. Moreover, the extent to which the

190 See S Bohr, "Sanctions by the United Nations Security Council and the European Community", (1993) 4 EJIL 256; and Reisman & Stevick, supra note 150, at 101-124. 191 See generally, V Gowlland-Debbas, Collective Responses to Illegal Acts in International Law (1990); L Fisler-Damrosch, "The Civilian Impact of Economic Sanctions", in L Fisler-Damrosch ed, Enforcing Restraint: Collective Intervention in Internal Conflicts (1993) 274; and Reisman & Stevick, ibid, at 96-124. 192 See the sources cited supra Chapter 2 note 196. 193 For a discussion of the practice of the Security Council in relation to sanctions and the requirements of IHL, see H Gasser, "Collective Economic Sanctions and International Humanitarian Law, An Enforcement Measure under the United Nations Charter and the Right of Civilians to Immunity: an Unavoidable Clash of Policy Goals", (1996) 56 ZAORV 871 at 884-890. See also Reisman & Stevick, supra note 150, (discussing the application of the principles of necessity, proportionality, and discrimination to the imposition of economic sanctions by the United Nations). 194 See R Provost, "Starvation as a Weapon: Legal Implications of the United Nations Food Blockade Against Iraq and Kuwait", (1992) 30 Colum JTL 577 at 628-634. 195 See, however, Art 1 of the Universal Declaration on the Eradication of Hunger and Malnutrition (UNGA Res 3348 (XXIX) 17 Dec 1974).

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Security Council itself is bound by any limitations derived from IHL is unclear.19*^ A related issue is the formal inapplicability of the Geneva Conventions and Protocols to UN forces. ^ 7 Although commentators argue that these forces are subject, as a matter of customary international law, to the provisions of IHL, the extent to which this is the case is not beyond question.198 It is only recently that the UN has taken steps to clarify its position. 1 " The uncertainty as to the legal position may have contributed to the treatment of women by these forces. Finally, in the context of the boundaries of IHL, no criticism of its limitations would be adequate without referring to its failure to deal with the issue of the proliferation of weapons or disarmament. The issue has particular significance for women in the context of the proliferation of small arms and such weapons as land mines.

7.

Interpretation and Development of IHL

In common with all law, the interpretation placed on the provisions of IHL fundamentally influences their scope of operation. This process occurs in the application, dissemination and enforcement of the rules of IHL. The provisions of international law and IHL reflect the need to reach consensus among States with widely differing viewpoints and priorities. In the context of IHL, rules that impose "hard obligations" on states, and whose breach may lead to the criminal liability of individuals, must allow a degree of latitude in their application, otherwise agreement for their adoption will not be forthcoming. In many cases this flexibility disadvantages women. This phenomenon can be illustrated by the ineffectiveness in practice of the rules designed to protect civilians from indis

196 As things stand at the moment, the United Nations is not bound by the treaty rules of IHL. The extent to which it is bound by customary principles remains unresolved. Cf Reisman, & Stevick, supra note 150, at 95, 127 (who regard the Security Council as bound by customary norms of IHL). See also T Meron, "Prisoners of War, Civilians and Diplomats in the Gulf Crisis", (1991) 85 AJIL 104 at 107-108, where the author expresses concern about the differences in standards between the requirements of the Fourth Geneva Convention and those put in place by Security Council resolution 661 (6 Aug 1990). 197 Only States can be parties to these conventional documents. 198 See C Greenwood, "Scope of Application of Humanitarian Law", in D Fleck ed, The Handbook of Humanitarian Law in Armed Conflicts (1995) 39 at 45. 199 See Secretary-General's Bulletin Observance by the United Nations Forces of International Humanitarian Law, UN Doc ST/SGB/1999/13 (6 Aug 1999) and the further discussion infra Chapter 5 note 212 and accompanying text.

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criminate attacks. In the face of considerable opposition from the military establishment of States a range of protections for civilians from the means and methods of warfare were adopted in 1977 by Protocol I to the Geneva Conventions.200 Fundamental to the new conventional rules is the prohibition on indiscriminate attacks, the so called rule of proportionality.201 The Protocol prohibits excessive damage to civilians and civilian objects, in relation to the military advantage anticipated from an attack.202 The application of proportionality, therefore, involves a determination of the balance between the achievement of a military goal and the likely number of civilian casualties. The words "incidental" and "excessive" require assessments to be made that will in many cases involve a relative judgement about the value of lives, a conclusion that must inevitably reflect the priorities of those responsible for the decision: military men. Similar judgments are involved in the determination of what amounts to excessive "injury to civilians" and damage to "civilian objects". In the case of damage to civilian objects, the effectiveness of the requirement of proportionality in protecting the civilian population is undermined by the fact that many targets are "dual use". That is, although the target may be a legitimate military one, it may also be essential for the well-being and survival of the civilian population. The rule of proportionality was subjected to the rigours of practical application in the Persian Gulf conflict (1990-91). Although of the States actively involved in the conduct of the warfare, only Kuwait and Saudi Arabia had ratified or acceded to Protocol I, prior to the conflict the United States had declared support for the customary nature of the prohibition of direct attacks against the civilian population, and the fundamental principle prohibiting attacks that "would clearly result in collateral civilian casualties disproportionate to the

200 The United States in particular has strongly opposed the acceptance of its provisions. For example, the provisions of the Protocol relating to civilian protection have been declared to be militarily unacceptable by the Joint Chiefs of Staff, see A Sofaer, "The U.S. Decision not to Ratify Protocol I to the Geneva Conventions on tlie Protection of War Victims: The Rationale for the United States Decision", (1988) 82 AJIL 784, and for a detailed military criticism of the provisions of Protocol I, including those relating to the protection of civilians by the Head of the International Law Team of the Office of the Judge Advocate-General of the Army, see Hays Parks, supra note 128. 201 The majority of States, including the US, accept that the requirement that civilian losses are proportionate to the military goal, is reflected in customary international law. Where there are differences between States, is in relation to the actual test to be applied in order to determine what is a prohibited indiscriminate attack. 202 Arts 48-58 Protocol I generally, provide a detailed set of rules for the protection of civilians against the effects of hostilities. For a full description of their operation, see J Gardam, Non-Combatant Immunity as a Norm ofInternational Humanitarian Law (1993) 111-121.

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expected military advantage". 2°3 They and their allies, nevertheless, proceeded to conduct a campaign of aerial bombardment that resulted in widespread, immediate, and long-term civilian casualties.20^ There were several reports that indicated that the so called "precision bombing" of military targets by the coalition forces inflicted substantial civilian casualties. 205 It appears, however, that the majority of the civilian casualties did not occur at the time of the attack but were the consequence of the targeting of dual use objects, namely all the power plants, oil refineries, the main oil storage facilities, and water-related chemical plants. This led to the almost complete destruction of the infrastructure of what was a highly developed post-industrial state, with predictable impact on civilians. The conclusion is open that the concepts of excessive and disproportionate damage were interpreted in a manner that had almost no effect in limiting the damage to the civilian population and that, in truth, the only real protection for civilians is that they cannot be deliberately targeted. The dissemination of IHL is an express requirement for State Parties to the 1949 Geneva Conventions and Additional Protocols. 206 Moreover, Article 82 of Protocol I requires legal advisers to be available to military commanders during times of armed conflict. 2°7 There are various actors involved in these processes aimed at ensuring compliance with IHL. The military, who bear the primary responsibility for the implementation of IHL, are of pivotal importance, and have a very wide influence through their instruction courses, military

203 See M Matheson, "Customary Law and Additional Protocol I to the Geneva Conventions for Protection of War Victims: Future Directions in Light of the U.S. Decision not to Ratify", (1987) 81 Proc Am Soc Int'l L 426. For an analysis of the attitude of the United States and its coalition allies to the legal position in relation to indiscriminate attacks, see C Greenwood, "Customary international law and the First Geneva Protocol of 1977 in the Gulf conflict", in P Rowe ed, The Gulf War 1990-91 in International and English Law (1993) 63 at 76-79. 204 See Health and Welfare in Iraq after the Gulf Crisis (Harvard Study Team Report, 1991); Amnesty International, Report on the GulfWar (1991); Human Rights Watch, Needless Deaths in the Gulf War (1991); "GulfWar Casualties", (Oct 1991) New Internationalist30. 205 See for example, B Opeskin & S Wright, "War Crimes and the GulfWar", (1991) 68 Current Affairs 12 at 18. 206 See Art 47 First Geneva Convention, Art 48 Second Geneva Convention, Art 127 Third Geneva Convention, Art 144 Fourth Geneva Convention; Art 83(1) Protocol I, and Art 19 Protocol II. See also the requirement in Art 1 The Hague Regulations Respecting Land Warfare that the Parties issue instructions to their forces in conformity with the Regulations. 207 For a discussion of the role of legal advisers in relation to IHL see Pilloud et al, supra note 10, at 947-957; and D Garratt, "The Role of Legal Advisers in the Armed Forces", in P Rowe ed, The GulfWar 1990-91 in International and English Law (1993) 55.

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manuals, 208 and legal advisers. The ICRC also has a major role to play in the dissemination of IHL. 2 0 9 Interpretation also plays a very significant role in the context of enforcement of IHL. 2 1 0 In many cases, the scope of the protections provided by the rules is not clear. For example, the phrases "inhuman treatment" and "wilfully causing great suffering or serious injury to body and health", 211 are capable of covering a multitude of situations. Traditionally, they have not been regarded as encompassing many acts against women that are capable of falling within their ambit. It appears unjust for women to rely on the unpredictability of changing interpretations to achieve recognition of serious attacks on their person. As we have argued, the development of IHL is also greatly influenced by the military establishment of States. Delegations to review conferences always include a high proportion of military personnel. This is reasonable, as it is they who have the expertise of the battlefield and must implement any new laws. 212 However, we have demonstrated the negative attitude of the military to women 2 1 3 and how demeaning images of women are used to train soldiers.21^ It is inevitable that these attitudes will influence the focus of new protections. The ICRC which plays such a pivotal role in the development of IHL is also a male dominated and conservative institution with traditional ideas about women. The following, although somewhat dated, is illustrative of their approach: While the International Committee is of necessity obliged to exercise discretion in recruiting women to perform tasks presenting special difficulties of a psychological or other nature — participation in relief activities in areas where

208 For a comprehensive list of State Military and Red Cross Manuals on IHL, see Fleck, supra note 16, Appendix 3, 555209 By Art 4(g) of the Statutes of'the International Committee of'the Red Cross, 24 June 1998, one of the roles of the organisation is to "to work for the understanding and dissemination of knowledge of international humanitarian law applicable in armed conflicts and to prepare any development thereof", ICRC ; and see Y Sandoz, The International Committee of the Red Cross as Guardian of International Humanitarian Law (1998). 210 See generally the further discussion of this issue infra Chapter 6. 211 See die grave breach provisions of the Geneva Conventions Art 50 First Geneva Convention, Art 51 Second Geneva Convention, Ait 130 Third Geneva Convention, and Art 147 Fourth Geneva Convention. 212 See A Rogers, Law on the Battlefield (1996) 149-151. 213 t is nowadays acknowledged that sexual harassment of women in the armed forces of many, if not all States, and in paramilitary forces, is endemic. See for example, Enloe supra note 130 at 97. 214 See supra note 144 and accompanying text.

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military operations are taking place, visits to prisoners of war, to male political prisoners — it is nevertheless ready to avail itself increasingly of the highly valued collaboration of women.215 In 1987 Madame Renee Guisan, a member of the ICRC, conducted a survey of women within the organisation. She noted the lack of women in the upper levels of the ICRC and in all the important decision-making positions. A number of recommendations was made, including the greater involvement of women at every level of decision making, and improved policies on gender issues. 216 The

absence of women from the organisation is still marked. However, there are signs of change. In 1998 the ICRC stated it was resolved to increase the levels of women in senior positions,2 ^ a n d to attempt "to promote the situation of female staff within the Institution, with a related objective to improve its daily work in the field".218 The ICRC has not remained impervious to the growing pressure to respond more adequately to the situation of women in armed conflict. For example, in 1993 the Final Declaration of the International Conference for the Protection of War Victims declared its alarm at "the marked increase in acts of sexual violence directed notably against women and children" and reiterated "that such acts constitute grave breaches of international humanitarian law".219 Moreover, the 26^ International Conference of the Red Cross and Red Crescent adopted by consensus a resolution dealing separately with sexual violence against women.220 The resolution condemned this practice, reaffirmed rape in the conduct of armed conflict as a war crime, and highlighted the importance of enforcement of the relevant provisions and the need to train those involved in such processes. The consistent view of the ICRC is that the "tragic plight of women does not primarily result from a lack of humanitarian rules to protect them but rather

215 Report by the Secretary-General on the Protection of Women and Children in Emergency or War-Time, Fighting for Peace, National Liberation and Independence, UN Doc E/CN.6/536 (24 Mar 1970) paras 15, 7. 216 See C Moorehead, "A Women's Place", (1995) 1 Red Cross Crescent 2 at 4 (quoting the Deputy Delegate General for Eastern Europe and Central Asia). 217 See ICRC, Future of the ICRC: plan of action (30 Apr 1998). 218 Project avenir-follow up to Beijing conference on women. 219 Para 13, Final Declaration of the International Conference for the Protection of War Victims, reprinted in (1993) 296 ICCR 377. 220 See Res 2 B, Final Declaration of the International Conference for the Protection of War Victims, reprinted in (1996) 310 ICCR 63.

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from a failure to coherently interpret and implement existing rules".221 Its principal response to the Beijing Platform for Action, for example, has been to reiterate the need for respect and implementation of the existing rules for women.222 However, there is also a growing awareness by the organisation that women experience armed conflict in distinctive ways, and, moreover, some indication of a preparedness to investigate whether IHL is indeed adequate to address the problems of women in armed conflict.223 In 1998-2000 the ICRC conducted an in-house study of the situation of women in armed conflict to assess the adequacy of IHL and its own humanitarian response to their needs.22^ Although a welcome initiative, one might question the level of resources devoted to this study, as compared with the study of the customary status of the conventional provisions of IHL, undertaken by the ICRC in 1998-2000. The limited approach of the ICRC to the issue of women and armed conflict is also exemplified by the way in which the fundamental principle of the Movement, impartiality, is interpreted by the Organisation.225 Although recognising that women should benefit equally from existing measures to meet the needs of the civilian population, the ICRC considers that "[f]aithfully applying that principle [of impartiality] rules out an exclusively gender-specific approach."226 Impartiality, however, assumes the absence of endemic discrimination against women. A related factor that has contributed to the failure of IHL to acknowledge the particular experiences of women is the minimal role they have played in its formulation. For example, at the Diplomatic Conference that adopted the Geneva Conventions, there were only thirteen women representatives out of a total of more than two hundred and forty.22^ This situation had improved some

221 See Advancement of Women and Implementation of the Outcome of the Fourth World Conference on Women, statement by the ICRC to the UN General Assembly, 53rd Session, Third Committee, (15th Oct 1998) ICRC < http://www.icrc.org> [hereinafter ICRC Advancement of Women], See also Statement of Mrs Renee Guisan member of the ICRC to the Fourth World Conference on Women, Beijing, 4-15 Sep 1995, ICRC < http://www.icrc.org>. 222 See ICRC Advancement of Women, ibid, at 262. 223 Statement by the ICRC to the Commission on Human Rights, 55th Sess., agenda item 12(a) (22 Mar-30 Apr 1999). Cf "Update on ICRC's initiative to better respond to the needs and resources of women affected by armed conflicts", Oct 1999, ICRC < http://www.icrc.org>. 224 This is a somewhat restricted study. The study on women was conducted by two ICRC headquarters personnel, with information supplied from 56 ICRC delegations. 225 J Pictet, The Fundamental Principles of the Red Cross proclaimed by the Twentieth International Conference of the Red Cross, Vienna, 1965: Commentary (1979) 37-51. 226 ICRC, Advancement of Women, supra note 221, at 262. 227 See Federal Political Department Berne, "List of Delegates, Experts and Observers at the Diplomatic Conference", in Final Record of the Diplomatic Conference of Geneva 1949 (1949) 155.

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what by the time that the two 1977 Protocols came to be negotiated, where two hundred and fourteen women participated. To some extent these statistics are misleading because, from time to time, some individual women have in fact made a significant contribution to the development of IHL. This phenomenon commenced with the wives of the Emperors of Austria and Russia, who persuaded their husbands to convene the first international conference for victims of war in 1868, and is today represented by the more direct input, particularly by women members of the Committee of the ICRC and personnel of the Organisation.228 Although commentators have addressed the impact of the absence of women in the formulation of domestic law, not a great deal of attention has been paid to this phenomenon in the development of international law.22? However, the involvement of women in law making and decision making generally, does not necessarily lead to an increased recognition of the particular experiences and needs of women. It depends on the particular approach of the women concerned and their willingness to challenge the underlying assumptions of the system.

8.

Conclusion

This Chapter has compared the way women experience armed conflict with the legal regime of IHL. To some extent these events are reflected in the protections offered by its rules. If the vulnerability of women to armed conflict were limited to sexual violence of a certain type; to their special needs when pregnant or as mothers of young children; to the types of indiscriminate attacks contemplated by the rules and as interpreted by the military; and if all these events primarily occurred in traditional international armed conflicts; the criticisms that could be levelled against IHL would be limited. Allegations of the discriminatory nature of the regime, in particular, would be unsustainable. This, however, is not the reality of armed conflict for women. We have demonstrated how discrimination against women in society generally has translated itself into the provisions of IHL, and how the unequal status of women also exacerbates what appear initially to be neutral factors experienced by both men and women. Without these insights any attempts to develop the regime will necessarily be limited in their effectiveness.

228 Information supplied to the authors by Jean Perrenoud, ICRC Geneva, 1999; and see generally, C Moorhead, Dunant's Dream: War, Switzerland and the History of the Red Cross (1999). 229 See, however, H Charlesworth, "Transforming the United Men's Club: Feminist Futures for the United Nations", (1994) 4 Transnational Law & Contemporary Problems All.

CHAPTER 5 UN DEVELOPMENTS CONCERNING WOMEN AND ARMED CONFLICT

1.

Introduction

Chapters 3 and 4 focused upon the regime of IHL, its limited response to the experience of women in armed conflict, and explanations for these shortcomings. We concluded that IHL is a discriminatory regime in that it takes as its norm the experience of a certain type of male. Moreover, IHL only takes into account a limited range of the experiences of women in armed conflict. In this Chapter, we turn our attention to the contribution that the United Nations (UN), and its specialised agencies, through their focus on human rights, have made towards addressing the distinctive effect of armed conflict on women.1 The UN is having an increasingly significant impact on the development of both "soft" and "hard" norms relating to armed conflict.2 The UN can be an effective mechanism for focusing international attention on an issue and formulating a coordinated strategy in response and, as such, represents the most promising forum for a comprehensive approach to the problem of women and armed conflict. Our objectives in this Chapter are twofold. First, we provide an overview of what has happened in relation to women and armed conflict within the UN framework. Shortly after its inception, the UN adopted a number of initiatives

Our analysis is limited to the major initiatives in this field, and does not include the work of the International Criminal Tribunal for Rwanda, the International Criminal Tribunal for the Former Yugoslavia, nor the International Criminal Court, as these developments are dealt with infra Chapter 6. There are other responses to women and armed conflict by various agencies within the UN. See for example, The Impact of Armed Conflict upon Children: Report submittedpursuant to the resolution adopted by the General Assembly A/RES/48/157 to the Fifty First session of the United Nations General Assembly, UN Doc A/51/306 (26 Aug 1996) [hereinafter Machel 1996 Report] para 254 (describing UNIFEM programmes focusing on women and armed conflict, such as the African Women in Crisis programme, which is working to strengthen the capacity of women's peace movements throughout Africa). Moreover, since the adoption of the UN Charter there has been increasing convergence between the regimes of IHL and human rights law. See the sources cited supra Chapter 4 note 113.

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designed to prevent the repetition of the events of World War II. 3 However, these developments paid little attention to the distinctive situation of women in armed conflict. It was not until the late 1960s, following the 1968 Conference on Human Rights in Teheran, that the topic of women and armed conflict first appeared on the agenda of the UN. The discussion commences with the work of the Commission on the Status of Women (CSW) between 1968 and 1974, on the "protection of women and children in emergency and armed conflict".^ During the period between 1974 and 1990, little consideration was given to the topic of women and armed conflict. However, in the early 1990s, the issue of sexual violence against women in armed conflict achieved prominence within the UN system. Two particular cases of widespread sexual violence during armed conflict prompted this development. One was the struggle of the Asian women forced into sexual slavery by the Japanese Army prior to, and during World War II, to have the crimes committed against them acknowledged and redressed. 5 Secondly, towards the end of 1992, there was widespread media coverage of the sexual atrocities committed during the armed conflict in the former Yugoslavia.^ Strong and persistent demands for a response to these events came from around the globe. At the same time, advocates for women's rights intensified their efforts to have violence against women recognised as a human rights issue. Reports of sexual violence committed against women in the former Yugoslavia provided powerful support for the argument that violence against women is a fundamental human rights violation. The UN took various steps to respond to the sexual violence against women in the former Yugoslavia, which appeared to reflect a genuine concern for the human rights of women. However, the inadequate response

3

For example: the Convention on the Prevention and Punishment of the Crime of Genocide was opened for signature, ratification and accession pursuant to General Assembly Resolution 260A (III), on 9 Dec 1948; in 1950, the International Law Commission (ILC) reported on the Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal pursuant to General Assembly Resolution 95(1), 11, Dec 1946; and the ILC also commenced work on the formulation of a Draft Code of Offences Against the Peace and Security of Mankind, and a Draft Statute for an International Criminal Court. See also Basic Principles for the Protection of Civilians in War- Time, adopted by the GA in resolution 2675 (XXV) of 9 Dec 1970 [hereinafter Basic Principles for Civilians] (ommitting any specific reference to women).

4

The CSW was established by the Economic and Social Council in 1946, in order to promote the rights of women in political, economic, civil, social and educational fields, ECOSOC Res 11(11) of 21 June 1946. For further information, see UN Womenwatch, . See the further discussion infra notes 53 ff and accompanying text. See the further discussion infra notes 74 ff and accompanying text.

5 6

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of the UN to the sexual violence during the 1994 conflict in Rwanda raises doubts as to whether this action was prompted by concern over the treatment of women, or whether other factors were decisive. In the period following the 1995 United Nations Fourth World Conference on Women (Beijing Conference), we consider the extent to which recognition of the distinctive impact of armed conflict on women has extended beyond the issue of sexual violence. The 1995 Beijing Platform for Action placed the problem of women and armed conflict in a broader context and, most importantly, recognised that the vulnerability of women during armed conflict is a direct consequence of the discrimination that women face throughout their lives.7 This expanded focus on women and armed conflict has subsequently been reflected in some of the initiatives adopted by the UN resulting in a more comprehensive approach to the impact of armed conflict on the lives of women. Secondly, in this Chapter we examine the factors that determine how the UN responds to the suffering of women during armed conflict. We identify the characteristics of the woman that is discernible in developments within the UN context. A comparison is then made of the influences that have shaped IHL and the work of the UN on women and armed conflict.

2.

Early Approaches: The Commission on the Status of Women 1968-1974

At its twenty-second session, the CSW adopted Resolution 4(XXII) on the Protection of Women and Children in Emergency or War Time, Fighting for Peace, National Liberation and Independence.8 The 1968 International Conference on Human Rights in Teheran, which had addressed the issue of human rights and armed conflict, was the impetus for this resolution.9 The topic of women and children in emergency and conflict situations was first discussed in detail at the 23rc' session of the CSW in 1970, and then in subsequent sessions in 1972 and 1974. These deliberations culminated in the adoption of the 1974

See Fourth World Conference on Women, Action for Equality Development and Peace, Beijing Declaration and Platform for Action, UN Doc A/Conf. 177/20 (1995) [hereinafter Beijing Declaration, and Beijing Platform for Action]. See Res 4(XXII) of 3 Feb 1969; ECOSOC 64th session, 66 (27 Jan-12 Feb 1969), UN Docs E/CN.6/527, E/4619. See Res I and XXIII on human rights and armed conflict adopted by the 1968 International Conference on Human Rights, as well as post-conference initiatives, such as GA Res 2443 (XXIII) 19 Dec 1968, on respect for and Implementation of Human Rights in Occupied Territories, and 2444(XXIII) on human rights in armed conflict.

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General Assembly Declaration on the Protection of Women and Children in Emergency and Armed Conflict.10 To assist the Commission in its work, the UN Secretary-General prepared reports on the situation of women and children in emergency and armed conflict, compiled from information in existing UN documents, and provided by relevant specialised agencies of the UN, the International Committee of the Red Cross (ICRC), and NGOs.1 1 These reports, as well as the debates that took place in the Commission, indicate the limited information available on the specific conditions affecting women and children during armed conflict and other emergency situations.12 In the CSW, various delegations urged the adoption of measures to obtain more detailed information. ^ The attitude of States to the work of the CSW on the protection of women and children is indicative of the limited understanding of the problem that prevailed at the time. To begin with, there was considerable opposition to the inclusion of the topic on the agenda at all. Some delegations objected to what they characterised as "special privileges" for women civilians, who they regarded as no different from the remainder of the civilian population.1^ There was no recognition of the distinctive impact of armed conflict on women, nor the value of incorporating the perspective of women into developments in this area.

10

11

12 13 14

CSW Res XIII of 1974 included a draft declaration for consideration by the ECOSOC. ECOSOC Res 1861 (LVI) of 16 May 1974 recommended the GA adopt a Declaration on the Protection of Women and Children in Emergency and Armed Conflict. The GA considered the ECOSOC recommendation and adopted the Declaration on the Protection of Women and Children in Emergency and Armed Conflict in GA Res 3318 of 14 Dec 1974 [hereinafter 1974 GA Declaration]. See Report by the Secretary-General on the Protection of Women and Children in Emergency or WarTime, Fighting for Peace, National Liberation and Independence, UN Doc E/CN.6/536 (24 Mar 1970) [hereinafter Secretary-General 1970 Report]; Report by the Secretary-General on the Protection of Women and Children in Emergency or War-Time, Fighting For Peace, Self-determination, National Liberation and Independence; UN Doc E/CN.6/561 (21 Jan 1972) [hereinafter Secretary-General 1972 Report]; Report of the Secretary-General, Protection of Women and Children in Emergency and Armed Conflict in the Struggle for Peace, Self-determination, National Liberation and Independence, UN Doc E/CN.6/586 (26 Dec 1973) [hereinafter Secretary-General 1973 Report]. See for example, Secretary-General 1972 Report, ibid, at para 50. See comments of the representative of Iraq, CSW 1972 Summary record of minutes, UN Doc E/CN.6/min (5 May 1972) [hereinafter 1972 Summary Records] 223. See Report of the Commission on the Status of Women, UN Doc E/CN.6/546 (23 Mar-10 Apr 1970) [hereinafter CSW 1970 Report] para 144; and Report of the Commission on the Status of Women, UN Doc E/CN.6/568 (4 Feb-3 Mar 1972) [hereinafter CSW 1972 Report] para 224.

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It was also argued that the development of international humanitarian law (IHL) was more properly the province of the ICRC.1^ In particular, concerns were expressed that the topic overlapped with the drafting of what became the 1977 Additional Protocols to the four 1949 Geneva Conventions.1*^ Some delegations argued that, as provisions protecting women (and children) were to be included in the Protocols, additional consideration of the issue was unnecessary.17 These objections failed to recognise the value of the work of the CSW as a potential source of information during the drafting of the Protocols. Indeed, the Secretary-General reported that the views of CSW on women and armed conflict and the report from the 24* session of CSW were brought to the attention of the 1972 Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts,18 and that the draft Protocols were revised in light of the comments.1' Some States objected to consideration of the situation of women and children in emergency and armed conflict, on political grounds. The inclusion of the topic was initially prompted by the events in the Middle East, although it was subsequently expanded to cover most regions of the world.20 Israel argued that "the inclusion of the item on the Commission's agenda had been an undisguised attempt to slander Israel and to use a humanitarian subject for political ends."21 Generally, the debate in the CSW was marked by political posturing, and was used to further the agenda of various States.22

15

16

17 18 19 20 21 22

See for example the comments of the representative of the United Kingdom during the 25th Session of CSW, as reported in the Summary Records of the 613th-628th meetings, UN Doc E/CN.6/SR.613-628 (13 May 1974) [hereinafter 1974 Summary Records] 94-95. See also Report of the Commission on the Status of Women, UN Doc E/CN.6/546 (23 Mar-10 Apr 1970) para 144. Protocol Additional to the Geneva Conventions of 12 Aug 1949, and relating to the Protection of Victims of International Armed Conflicts, adopted in 1977 (Protocol I), (1977) 16 ILM 1391 [hereinafter Protocol I] and Protocol Additional to the Geneva Conventions of 12 Aug 1949, and relating to the Protection of Victims of Non-international Armed Conflicts, adopted in 1977 (Protocol II), (1977) 16 ILM 1442 [hereinafter Protocol II]. See 1974 Summary Records, supra note 15. See Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva, 3 May-3 June 1972 (Second Session). See Secretary-General 1973 Report, supra note 11, at paras 10-11. See also Y Khushalani, Dignity and Honour of Women as Basic and Fundamental Human Rights (1982) 116-117. See Para 1 of CSW Res 4(XXII) (referring specifically to the situation of women in Israel and the Occupied Territories, Jordan, Syria, West Bank, Gaza and North Sinai). 1972 Summary Record, supra note 13, at 227. See for example, ibid, at 215 (US and USSR); and 1974 Summary Record, supra note 15, at 70, 84-86, 88-92, 95 (Byelorussian Soviet Socialist Republic, USSR and Chile), 106, 108 (China and USSR).

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Those States in favour of considering the topic of women and children in emergency and armed conflict, emphasised that the aim was not to provide "special" privileges for women, but rather to protect a group that was particularly vulnerable. 23 However, their concern was predominantly limited to the role of women as mothers and care-givers.2^ The inclusion of women and children in the same category, despite their different experiences in armed conflict (and emergency situations), is evidence of this perspective. The subsequent 1974 GA Declaration emphasises the important role that women play "in society, in the family and particularly in the upbringing of children", and the corresponding need to accord them special protection.25 Despite these difficulties, the reports of the Secretary-General, particularly the later ones, reveal some important information about women who had been targeted in conflict zones, particularly in Africa2^ and the Middle East.2^ However, the prevalence of sexual violence during armed conflict was given minimal consideration. For example, in the February addendum to the 1972 Report of the Secretary-General, addressing "the recent hostilities on the Indian subcontinent", the coverage was confined to the plight of the refugee population, particularly mothers and children. No specific reference was made to sexual violence, despite the contemporaneous media coverage of the mass rape of Bengali women by Pakistani soldiers.28 During the 1972 CSW debates, some delegations briefly referred to the fact that women were subjected to abuse, such as abduction and rape, during armed conflict generally.2^ Others euphemistically referred to the rapes as "the tragic situation of large numbers of girls and women,

23 24 25 26

27

28

29

See CSW 1970 Report, supra note 14, at para 145. Ibid. See also the comments of the representative of Egypt during the 1974 debate of the CSW, UN Doc E/CN.6/SR.613-628 (13 May 1974) 87. See 1974 GA Declaration, supra note 10, Preamble. See the reference to the Ad Hoc Working Group of Experts established by the Commission on Human Rights Res 2(XXIII), 2 (XXIV), 21 (XXV), 8(XXII), regarding the mistreatment of women in Southern Africa and in the African territories under Portuguese administration, in the Secretary-General 1972 Report, supra note 11, at paras 39-49. See also reference to the reports of the Special Committee on Apartheid, established by the General Assembly in November 1962, regarding the ill-treatment of some women political activists in South Africa, including Winnie Mandela, in the Secretary-General 1973 Report, supra note 11, at paras 108-109. See the reference to the Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Population of the Occupied Territories established by GA Res 2443 (XXIII), 1968, regarding the ill-treatment of women at the hands of Israeli forces, in the Secretary-General 1972 Report, supra note 11, at paras 28-38. See S Brownmiller, Against Our Will: Men, Women and Rape (1975) 79 (confirming that media reports of these events first appeared in December 1971, and had become prominent by midJanuary 1972). See CSW 1972 Report, supra note 14, at para 226.

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particularly in parts of the Indian subcontinent, in the aftermath of war".3° The reluctance at the time to discuss sexual matters openly in such forums as the UN contributed to the limited focus on sexual violence. A 1972 CSW resolution, for the first time, makes reference to the fact that "women in war-torn areas are often victims of many forms of assault on personal dignity".31 This could be interpreted as a reference to sexual violence. To some extent, sexual violence during the war in Bangladesh was covered in the 1973 Report of the Secretary-General,32 and while there is no explicit mention of sexual violence in the 1974 GA Declaration, there is a reference to the need for States to take steps to prohibit, inter alia, "degrading treatment". This type of language historically has been used to refer to sexual violence.33 Nonetheless, there was no strong statement that rape and other similar abuses, such as those suffered by women in Bangladesh, were crimes of violence and a violation of the human rights of women. Overall, there was little recognition of the seriousness of sexual violence during armed conflict. The reports of the Secretary-General did include some information about the expulsion of women and children from Johannesburg, and malnutrition affecting women in "transit camps" in South Africa. Details were provided of the risks facing refugee women,34 discriminatory laws in South Africa, the vulnerability of women caused by legal illiteracy, and the impact of resettlement schemes in the homelands on women and children.35 As acknowledged by the Secretary-General, however, such information was scarce, and broader issues relating to women and armed conflict were largely ignored in the CSW debates on the topic. The importance of the participation of women in various initiatives concerning armed conflict was, however, acknowledged. For example, delegations emphasised the importance of the participation of women in the parallel review of the four 1949 Geneva Conventions.36 Attention was drawn to the low number of women participating in the first session of the Conference of Government Experts in March 1971.37 Only seven of the one hundred and seventy eight participants were women.38 In 1972, the CSW urged States to involve women in

30 31 32 33 34 35 36 37

38

Ibid. CSW Res XII, adopted on 2 Mar 1972, Preamble. Secretary-General 1973 Report, supra note 11, at para 104. See 1974 GA Declaration, supra note 10, para 4. See also Khushalani, supra note 19, at 114-115See Secretary-General 1973 Report, supra note 11, at para 40. Ibid, at paras 116, 117. See CSW 1972 Report, supra note 14, at para 225. See 1972 Summary Record, supra note 13, at 241. For details of the Conference see, Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts 1971 (ICRC). Ibid.

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the Conference of Government Experts to be convened by the ICRC later that year.39 Some States acknowledged that the absence of relevant information on the situation of women and armed conflict could only be remedied through the more active participation of women in such processes.^0 However, this concern did not manifest itself in concrete suggestions for achieving this aim. Several initiatives for improving the situation of women were proposed in the course of the consideration of women and children in emergency and armed conflict situations by the CSW. For example, the Secretary-General raised the possibility of developing the notion of "neutralised zones", to improve protection for women and children.41 This proposal, however, was not developed further, and did not find its way into the 1974 GA Declaration, which is couched in vague terms, and emphasises the role of women as mothers and caregivers. Nevertheless, there are some significant advances for the protection of women and children in the 1974 GA Declaration. For example, "... cruel and inhuman treatment of women and children, including imprisonment, torture, shooting, mass arrests, collective punishment, destruction of dwellings and forcible eviction, committed by belligerents in the course of military operation or in occupied territories", is criminalised.^2 Moreover, the 1974 GA Declaration reaffirms the right of women and children to: "shelter, food, medical aid or other inalienable rights, in accordance with the provisions of the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the Declaration of the Rights of the Child or other instruments under international law". Although extremely vague, this does at least raise some of the broader issues facing women as a result of armed conflict. Overall, however, given the reality of armed conflict for women, it is clear that the 1974 GA Declaration is inadequate in identifying and responding to the distinctive impact of armed conflict for women. Despite the limited scope of the deliberations of the CSW on women and armed conflict, their significance lies in the fact that it was the first time the issue of women and armed conflict was identified, and some effort made to improve the situation of women. Overall, a forum was provided that focussed some much-needed attention on the issue. Governments, the UN and its specialised agencies, and NGOs, were urged "to mobilize world public opinion in support of women and children ... in emergency and armed conflict". To some extent,

39 40 41 42

CSW Res XII, protection of women and children in emergency and armed conflict in the struggle for peace, self-determination, national liberation and independence, 24th session, 1972, para 3. Comments of the representative of Finland, 1972 Summary Record, supra note 13, at 216. See Secretary-General 1970 Report, supra note 1 l,at paras 23, 24. See 1974 GA Declaration, supra note 10, at para 5.

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the work of the CSW compensated for the omission of the situation of women from previous initiatives, such as the eight basic principles for the protection of civilians in armed conflict, adopted by the General Assembly in 1970.43

3.

1974-1990: The Topic of Women and Armed Conflict Disappears from the Agenda

Following the adoption of the 1974 GA Declaration, no further consideration was given to women and armed conflict as a discrete topic for many years. The Economic and Social Council (ECOSOC) continued to pass resolutions on specific cases, such as the situation of Palestinian women and children in the occupied Arab territories,44 women and children in Namibia,4^ and women and children living under apartheid.46 In the 1980s, the ECOSOC also began to acknowledge the particular vulnerability of women as refugees.47 Nonetheless, there was no attempt to make any progress on the general problem of woman and armed conflict, despite the proliferation of conflicts throughout the world. The Security Council, the organ with primary responsibility for the maintenance of international peace and security, rarely acknowledged the particular experience of women during armed conflict. On the few occasions when women were referred to, it was generally limited to their situation when "expectant mothers" and "maternity cases".48

43 44

45 46

47

48

Basic Principles for Civilians, supra note 3. For example, UN Docs E/RES/1982/18 (4 May 1982); E/RES/1984/18 (24 May 1984); E/RES/1988/25 (26 May 1988); E/RES/1990/11 (24 May 1990); E/RES/1991.19 (30 May 1991); E/RES/1992/16 (30 July 1992); E/RES/1993/15 (27 July 1993); and E/RES/1995/30 (25 July 1995). These resolutions, inter alia, recognise the poor living conditions of the Palestinian people, particularly the women and children; request the preparation of reports on the situation of these women as well as continued monitoring; and request that Governments, NGOs and InterGovernmental Organisations provide assistance to Palestinian women to facilitate income-generating activities and other facilities for women. See for example, UN Docs A/RES/35/206 (Dec 1980); E/RES/1988/24 (May 1988); E/RES/1989/31 (24 May 1989); E/RES/1990/6 (24 May 1990). See for example, UN Docs E/RES 1982/24 (May 1982); E/RES/1984/17 (24 May 1984); E/RES/1986/22 (23 May 1986); E/RES/1988/23 (23 May 1988); E/RES/1989/33 (24 May 1990); E/RES/1991/20 (30 May 1991); E/RES/1992/14 (30 July 1992); E/RES/1993/13 (27 July 1993). See for example, UN Docs E/RES/1982/25 (4 May 1982) (women and children refugees); E/RES/1986/25 (23 May 1986) (measures of assistance provided to South African, Namibian, and refugee women). For example, UN Doc S/RES 666 (13 Sep 1990) paras 3, 4 (resolving that, following the 1990 invasion of Kuwait by Iraq, particular attention should be paid to monitoring the availability of food for "persons who might suffer specially, such as children under 15 years of age, expectant mothers, maternity cases, the sick and the elderly").

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4.

UN Developments Concerning Women and Armed Conflict

The 1990s: Focus on Sexual Violence

In the early 1990s, several developments contributed to the resurgence of interest in the issue of women and armed conflict within the UN system. The focus, however, of these initiatives was almost exclusively limited to sexual violence. a.

The United Nations Compensation Commission

One of the earliest measures to address the impact of wartime sexual violence went largely unnoticed. In the aftermath of the Persian Gulf Conflict (1990-91), the Security Council established the United Nations Compensation Commission (UNCC) in order to provide compensation for damage resulting from Iraq's invasion of Kuwait.^ Important developments for women subjected to sexual violence during armed conflict resulted from the work of the UNCC.5° In response to documentation of the rape of Kuwaiti women by Iraqi soldiers,51 the U N C C took steps to ensure that these women received compensation for their injuries.52 b.

The "Comfort Women"

In December 1991, three South Korean women filed a claim in the Tokyo District Court, alleging that they had been forced into sexual slavery by the Japanese military prior to, and during, World War 11.53 A series of similar claims filed by ®ther Asian women followed, giving rise to a world-wide campaign for justice for these women, euphemistically referred to as "comfort women".

49

50 51 52 53

See UN Docs S/RES 687 (8 Apr 1991); and S/RES/692 (20 May 1991). See also Report of the Secretary-General Pursuant to Paragraph 19 of Security Council Resolution 687 (1991), UN Doc S/22559 (2 May 1991). See the further discussion of the UNCC infra Chapter 6 notes 338 ff and accompanying text. See Report of the Special Rapporteur on the Situation of Human Rights in Kuwait under Iraqi Occupation, UN Doc E/CN.4/1992/26 (1992). See the further discussion infra Chapter 6 notes 375 ff and accompanying text. See Japan Federation of Bar Associations, Supplementary Explanation ofthe Recommendations on the issue of "Comfort Women" (1995) 13. See also, D Boling, "Mass Rape, Enforced Prostitution, and the Japanese Imperial Army: Japan Eschews International Legal Responsibility?", (1995) 32 Colum JTL 533. For background on the case of the "comfort women" see generally, Report of the Special Rapporteur on Violence against Women, its Causes and Consequences on the Mission to the Democratic People's Republic of Korea, the Republic of Korea and Japan on the Issue of Military Sexual Slavery in Wartime, UN Doc E/CN.4/1996/53/Add.l (4 Jan 1996) [hereinafter Report on the "Comfort Women']; and U Dolgopol & S Paranjape, Comfort Women: An Unfinished Ordeal (1994).

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The claims of the "comfort women" were first raised within the UN system during the 1992 session of the UN Commission on Human Rights, and the issue has been considered in some detail in the subsequent sessions of the Working Group on Contemporary Forms of Slavery.54 The Working Group made several concrete recommendations regarding the provision of redress to these women, including the payment of monetary compensation. The possibility of the ECOSOC taking the matter to the International Court of Justice was also raised.55 Furthermore, at its 47 th session, the Sub-Commission on the Prevention of Discrimination and Protection of Minorities, appointed a Special Rapporteur on the "Question of Systematic Rape and Sexual Slavery and Slavery-like Practices During Wartime".56 The situation of the "comfort women" is a significant focus of the reports of the Special Rapporteur, who has submitted concrete recommendations for providing them with redress. 57 However, while the dialogue concerning the "comfort women" made an important contribution towards raising the profile of war time sexual violence, very little in real terms has been achieved for these women. 58

54

See for example, Report of the Working Group on Contemporary Forms of Slavery on its Eighteenth Session, UN Doc E/CN.4/Sub.2/1993/30 (23 June 1993) paras 81-87 [hereinafter Slavery Working Group 1993 Report]; Report of the Working Group on Contemporary Forms of Slavery on its Nineteenth Session, UN Doc E/CN.4/Sub.2/1994/33 (13 June 1994) paras 89-97; Report of the Working Group on Contemporary Forms of Slavery on its Twentieth Session, UN Doc E/CN.4/Sub.2/1995/28 (13 June 1995) paras 108-118; Report of the Working Group on Contemporary Forms of Slavery on its Twenty-First Session, UN Doc E/CN.4/Sub.2/1996/24 (19 July 1996) paras 86-95; Report of the Working Group on Contemporary Forms of Slavery on its Twenty-Second Session, UN Doc E/CN.4/Sub.2/1997/13 (1997) paras 66-72; and Report of the Working Group on Contemporary Forms of Slavery on its Twenty-Third Session, UN Doc E/CN.4/Sub.2/1998/14 (6 July 1998) paras 80-84. See generally, K Parker & J Chew, "Compensation for Japans World War II War-Rape Victims", (1994) 17 Hast Int'l & Comp L Rev 497 at 532.

55 56

See Slavery Working Group 1993 Report, ibid, at para 81. The work of the Special Rapporteur on this topic had in fact commenced several years earlier. Ms Linda Chavez was originally appointed to undertake the study at the 45th session of the SubCommission, but this decision was reversed at the 46th session when the Sub-Commission requested that Ms Chavez simply submit, without financial implications, a working paper on the situation of systematic rape, sexual slavery and slavery-like practices during wartime, including internal armed conflict. Following consideration of this paper (UN Doc E/CN.4/Sub.2/1995/38) at its 47th session, the Sub-Commission appointed Ms Chavez as Special Rapporteur to undertake an in-depth study on the topic, (Sub-Commission res 1995/14). Ms Gay McDougall subsequently took over the role of Special Rapporteur. See Subcommission on the Prevention of Discrimination and Protection of Minorities, E/CN.4/SUB.2/DEC/1997/114 (1997). See the further discussion infra notes 157 ff and accompanying text. The Special Rapporteur on Violence against Women has also investigated the situation of the "comfort women". See Report on the "Comfort Women", supra note 53. See the further discussion infra Chapter 6 at notes 330-337 and accompanying text.

57

58

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The Campaign to Eradicate Violence Against Women

Prior to the early 1990s, gender-based violence had been generally regarded as inappropriate for international action. Even the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), adopted in 1979, has no specific provisions on violence against women. 59 The World Conference to Review and Appraise the Achievements of the UN Decade for Women: Equality, Development and Peace, held in Nairobi in 1985 (Nairobi Conference), acknowledged the prevalence of violence against women.^° Although governments were urged to respond to the problem, there was no express recognition of violence against women as a human rights issue. In the years following the Nairobi Conference, the issue of violence against women received consideration within the UN system, particularly by the CSW.61 In addition, in 1992 the Committee on the Elimination of Discrimination against Women, the monitoring body of CEDAW, adopted a general recommendation on "Violence against Women".^2 However, the sexual violence committed during the armed conflict in the former Yugoslavia brought the issue to prominence. Towards the end of 1992, reports emerged of the use of deliberate and systematic sexual violence as a weapon of war by Bosnian Serb forces.63 A perception emerged that the Bosnian Serb military command had established "rape camps" as a deliberate strategy to achieve their military objectives.^ The worldwide outrage provoked by these reports provided important support for the argument that violence against women is a fundamental human rights violation, of concern to the international community at large. From this time, violence against women in armed conflict became an integral part of the wider campaign to eradicate violence against women.

59 60 61

62 63

64

Convention on the Elimination of Ml Forms of Discrimination against Women, UN Doc A/34/46 (1979) [hereinafter CEDAW]. See Report of the World Conference to Review and Appraise the Achievements of the United Nations Decade For Women: Equality, Development and Peace, Nairobi, 15-26 July 1985. For a detailed account of the development of the issue of violence against women within the UN system see, Preliminary Report Submitted by the Special Rapporteur on Violence Against Women, its Causes and Consequences, Ms. Radhika Coomaraswamy, UN Doc E/CN.4/1995/42 (22 Nov 1994) [hereinafter Coomaraswamy 1994Preliminary Report^ paras 20-45UN Committee on the Elimination of Discrimination Against Women (CEDAW), Eleventh Session, General Recommendation 19, UN Doc CEDAW/C/1992/L.l/Add.l5 (1992). See for example, reports in The Miami Herald'(18 Dec 1992); and Die Welt (\ Oct 1992), cited in C MacKinnon, "Crimes of War, Crimes of Peace", in S Shute & S Hurley eds, On Human i The Oxford Amnesty Lectures 1993 (1993) 83. See the sources cited supra Chapter 2 note 67.

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The 1993 UN World Conference on Human Rights held in Vienna was a pivotal event for the recognition of women's human rights, and particularly the issue of violence against women.65 The Vienna Declaration and Programme of Action for the first time recognises violence against women as a human rights issue.66 The Declaration specifically acknowledges the vulnerability of women to sexual violence during armed conflict, and condemns it as a human rights violation requiring a "particularly effective response".67 In addition, a tribunal organised by NGOs during the Conference heard testimony regarding violations of women's human rights around the world, including sexual violence during armed conflict. This testimony included statements from former "comfort women", Palestinian, Somali, and Peruvian women, as well as women from the former Yugoslavia.6^ Developments in relation to violence against women coalesced in December 1993, when the GA adopted the Declaration on the Elimination of Violence against Women. 69 The Declaration identifies three main categories of violence against women, namely physical, sexual and psychological violence occurring: within the family; within the general community; and that perpetrated or condoned by the State. In the context of the latter category, the Declaration explicitly recognises that women in conflict situations are especially vulnerable to violence. 70 In March 1994, the Commission on Human Rights appointed a Special Rapporteur on Violence against Women, including its Causes and Consequences.71 The Special Rapporteur has examined violence against women in armed conflict situations as part of her mandate. 72

65

66

67 68 69 70 71

72

For a discussion of the development of the international women's human rights agenda, see C Enloe, "Afterword: Have the Bosnian Rapes Opened a New Era of Feminist Consciousness?", in A Stiglmayer ed, Mass Rape: The War Against Women in Bosnia-Herzegovina (1994) 219 at 225227. Vienna Declaration and Programme of Action adopted by the World Conference on Human Rights held in Vienna from 14 to 25 June 1993, UN Doc A/Conf. 157/24 (13 Oct 1993) [hereinafter Vienna Declaration]. Vienna Declaration, ibid, para 38. See also paras 28, 29. N Reilly ed, Testimonies of the Global Tribunal on Violations of Women's Human Rights at the United Nations World Conference on Human Rights (1993). Declaration on the Elimination of Violence Against Women, adopted 20 Dec 1993, GA Res 48/104. Ibid, Preamble, and Art 2. Commission on Human Rights Resolution, 1994/45 (4 Mar 1994). The mandate of the Special Rapporteur was extended for a further three-year period in 1997. See Commission on Human Rights Resolution, 1997/44 (1997). See the further discussion of the work of the Special Rapporteur infra notes 167-170 and 197 ff and accompanying text.

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Rape in Armed Conflict as a Threat to International Peace and Security

(i) The former Yugoslavia The treatment of women during the conflict in the former Yugoslavia was instrumental in furthering the campaign to eliminate violence against women generally, but the significance of these events was more widespread. For the first time, sexual violence against women during armed conflict emerged as a distinct issue within the UN system. In particular, the sexual abuse of women during armed conflict was linked with the maintenance of international peace and security, and the United Nations system as a whole was prompted to respond. In December 1992, the Security Council, "[a]ppalled by reports of the massive, organized and systematic detention and rape, in particular of Muslim women, in Bosnia and Herzegovina", demanded that all camps for women be immediately closed/3 A series of subsequent resolutions also referred to the rape of women in the former Yugoslavia.^ During the same period, a Commission of Experts to investigate violations of IHL in the former Yugoslavia (Yugoslav Commission) was established by the Secretary-General at the request of the Security Council.^ The Yugoslav Commission reported to the Secretary-General on grave breaches of IHL during the conflict in the former Yugoslavia.76 Throughout its investigations, the Yugoslav Commission gave serious consideration to the issue of sexual violence. In its Interim Report, the Commission referred to allegations of "widespread and systematic rape and other forms of sexual assault", that had been specifically investigated.^ Further, "systematic sexual assault" was listed as one of the general areas to be given priority in future investigations.?8 Accordingly, in its Final Report, the Yugoslav Commission focused specifically on sexual violence.79 The

73 74

75 76 77 78 79

UN Doc S/RES 798 (18 Dec 1992). See for example, UN Doc S/RES/820 (17 Apr 1993) (condemning the massive, organised and systematic detention and rape of women, and re-affirming the individual responsibility of the perpetrators); UN Docs S/RES/827 (25 May 1993) (expressing alarm at the systematic detention and rape of women); and S/RES/1019 (9 Nov 1995) (expressing concern over reports of rape and deportation of civilians). See UN Doc S/RES/780 (1992). Interim Report of the Commission of Experts Established Pursuant to Security Council Resolution 780 (1992), UN Doc S/25274 (26 Jan 1993) para 1. Ibid, para 58. Ibid, para 66(c). See Final Report ofthe Commission of Experts Established Pursuant to Security Council Resolution 780 (1992), UN Doc SI 1994/674 (1664) [hereinafter Yugoslav Commission 1994 Final Report]. The report of the Commission includes a number of annexes, several of which deal specifically with sexual assault and comprise over 190 pages of the report. See S/1994/674/Add.2 (28 Dec 1994, Annexes IX, IX.A and IX.B).

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Yugoslav Commission referred to approximately 1,100 reported cases of sexual violence. 80 Field investigators, including lawyers, psychologists, and psychiatrists, conducted 223 interviews in Croatia. 81 This was the first time that lawyers and mental health professionals had worked together in a UN field mission of this type. 82 Several patterns of rape were identified, namely: sexual assaults by individuals or small groups in conjunction with looting and intimidation, occurring before hostilities commenced in a particular area; sexual assaults, often carried out in public, in conjunction with fighting in a particular area; sexual assaults against women in detention; and the detention of women solely for the purpose of sexual assault, either with the intention of inflicting harm upon the women, or for the gratification of the perpetrator.8^ Perpetrators frequently stated they were trying to impregnate the women concerned, and those women who became pregnant as a result of rape, were detained until termination of their pregnancy was no longer an option. 8 ^ Many victims reported to the Yugoslav Commission that perpetrators made comments about raping pursuant to orders, and stated the objective of ensuring that victims and their families would be driven from the area.8^ The Yugoslav Commission concluded that, although all sides to the conflict had committed sexual violence, by far the majority of victims were Bosnian Muslims, whereas the vast majority of perpetrators were Bosnian Serbs. More than sixty percent of the detention sites, where sexual assault occurred, were reportedly controlled by the Bosnian Serbs.8& A number of factors were cited as evidence of an over-all pattern of sexual assault in the former Yugoslavia. These included: similarities among practices in non-contiguous geographic areas; simultaneous commission of other humanitarian law violations; simultaneous military activity; simultaneous activity to displace civilian populations; common elements of the commission of rape and sexual assault; maximising shame and humiliation to not only the victim but also the victim's community; and the timing of the alleged rapes and sexual assaults.8'

80 81 82 83 84 85 86 87

See Annex IX, Rape and Sexual Assault, UN Doc S/1994/674/Add.2 vol V (28 Dec 1994) [hereinafter Annex IX\ IA. Ibid, at note 1 and accompanying text. See I Guest, On Trial, The United Nations, War Crimes, and the Former Yugoslavia (1995) 88. Annex IX, supra note 80, pt IC. Ibid, at 22 and accompanying text. Ibid, pt IC. Ibid. Ibid.

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The Yugoslav Commission was preoccupied with the connection between ethnic cleansing and sexual violence, and the existence of detention camps in which sexual violence was perpetrated was a significant focus of its Final Report. In the view of the Commission, the large number of allegations of rape and sexual assault in places of detention indicated "a policy of at least tolerating rape and sexual assault or the deliberate failure of camp commanders and local authorities to exercise command and control over the personnel under their authority." 88 Ultimately, however, the Yugoslav Commission acknowledged that the use of rape as a strategy of warfare had not been conclusively established. 8 9 The Security Council expressed grave concern over the reports of widespread violations of IHL, and determined that the situation in the former Yugoslavia constituted a threat to international peace and security. The Council resolved that, in the circumstances of the former Yugoslavia, the establishment of the International Criminal Tribunal for the Former Yugoslavia (ICTY) under Chapter VII of the UN Charter would contribute to the restoration and maintenance of peace.5° Both Security Council resolutions relating to the establishment of the ICTY refer to rape. In resolution 808, the Security Council expressed its grave concern over the treatment of Muslim women in the former Yugoslavia.91 In resolution 827, the Security Council expressly refers to the "massive organized and systematic detention and rape of women." 92 The Security Council debates on resolutions 808 and 827, support the proposition that sexual violence against women was one of the foremost concerns in establishing the ICTY. 93 Moreover, the ICTY has subsequently taken a progressive approach to some aspects of the issue of sexual violence against women. 9 ^ The specific recognition of the rape of women in the former Yugoslavia was also evident in the response of other UN bodies. The GA passed several resolutions condemning this abused I n August 1992, the Human Rights Commission

88 89 90 91 92 93

94 95

Ibid, pt ID. Ibid. See UN Docs S/RES/808 (22 Feb 1993), and S/RES/827 (25 May 1993). See UN Doc S/RES 808 (22 Feb 1993) Pteamble para 11. See UN Doc S/RES/827 (25 May 1993) Preamble para 3. See for example, the statement of the United States representative Madeline Albright, Provisional Verbatim Record, UN Doc S/PV.3217 (25 May 1993); and also the statements of Sir David Hannay (United Kingdom), Mr Barbosa (Cape Verde), Mr Sardenberg (Brazil). See also Provisional Verbatim Record, UN Doc S/PV.3175 (22 Feb 1993) statements by Mr de Arujo Castro (Brazil), Mr Merimee (France), Mr Richardson (United Kingdom), Mr Vorontsov (Russian Federation), and Mr Arria (Venezuela), and Mr Olhaye (Djibouti). See the further discussion of the ICTY infra Chapter 6. See for example, UN Doc A/RES/48/143 (20 Dec 1993); and A/RES/49/205 (23 Dec 1994).

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appointed a Special Rapporteur on the Situation of Human Rights in the Territory of the Former Yugoslavian^ In January 1993, the Special Rapporteur dispatched an international team of medical experts to investigate rape.9-7 The Special Rapporteur subsequently reported that rape had been used as an instrument of ethnic cleansing in Bosnia-Herzegovina and Croatia, and that apparently no effort had been made to prevent the rapes by those in authority.^8 Further references to rape were made in subsequent reports.99 At first glance, this unprecedented reaction to sexual violence against women in the former Yugoslavia appears to signal a decisive change in the attitude of the UN, particularly by the Security Council, in the recognition of crimes committed against women during armed conflict. On several occasions, the Security Council expressed grave concern over the treatment of women in the former Yugoslavia, and fact-finding teams were sent in with specific instructions to investigate sexual violence. Moreover, concern for the situation of women was expressed during the Security Council discussions regarding the establishment of the ICTY. However, an examination of the response by the UN to the widespread sexual violence that occurred during the conflict in Rwanda, approximately two years later, tells a vastly different story, and calls into question the extent to which there has been a permanent change of attitude in the U N system to violence against women in armed conflict. (ii) Rwanda Following the 1994 conflict in Rwanda various NGOs reported that sexual violence against women had occurred on a massive scale. 100 Human Rights Watch concluded that virtually every post-pubescent female survivor of militia violence in Rwanda, was subsequently raped. Estimates range from between 250,000 to 500,000 cases of rape. 101 Many women were forced into sexual slavery, either individually or collectively.102 There is evidence that abducted women were

See UN Doc 1992/S-l/l (1992). See Report of the Secretary-General on Rape and Abuse of Women in the Territory of the Former Yugoslavia, UN Doc E/CN.4/1994/5 (30 June 1993) 4-5 (describing this initiative by the Special Rapporteur on the Situation of Human Rights in the Territory of the former Yugoslavia). 98 See Report on the Situation of Human Rights in the Territory of the former Yugoslavia, UN Doc E/CN.4/1993/50 (10 Feb 1993) at paras 60-62. 99 See Fifth Periodic Report on the Situation of Human Rights in the Territory of the Former Yugoslavia, UN Doc E/CN.4/1994/47 (1994); and Sixth Periodic Report on the Situation of Human Rights in the Territory of the Former Yugoslavia, UN Doc E/CN.4/1994/110 (1994). 100 See for example, African Rights, Rwanda: Death, Despair and Defiance (rev ed, 1995); Human Rights Watch, Shattered Lives: Sexual Violence During the Rwandan Genocide and its Aftermath (1996); and Lawyers Without Borders, Violations of Women's Rights in Rwanda (25 Aug 1996). 101 See Human Rights Watch, ibid, at 24. 102 Ibid, at 52, 56.

96 97

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taken as "wives" by their captors,103 and in some cases were bought and sold among the "interahamwe".10^ Gender-based Hutu propaganda was used to incite violence against Tutsi women during the conflict in Rwanda. Tutsi women were portrayed as "calculated seductress-spies" who were deliberately used by the Tutsi's to infiltrate the Hutu ranks. 105 Tutsi women were also targeted because of gender stereotypes portraying them as inaccessible to Hutu men, whom they allegedly regarded as inferior.10'' The purpose of rape was "to shatter these images by humiliating, degrading, and ultimately destroying the Tutsi woman." 107 There was also a clear perception that women were "property", and "spoils" of war. 108 N G O reports included information about the use of rape to terrorise the Tutsi community generally. 1 ^ Some NGOs also expressed the view that rape was used to destroy the fabric of the community, and was genocidal in nature. 110 However, in contrast to the reports regarding rape in the former Yugoslavia, there was no widespread media-generated perception as to the establishment of rape camps, or that specific instructions were given to military personnel to rape women. 111 Despite the shocking treatment of women during the conflict in Rwanda, the Security Council made no reference to sexual violence against women during its discussion of the conflict. 112 Nor was sexual violence a focus of the investigations into the conflict initiated by the Security Council. In July 1994 the Security Council requested the Secretary-General to establish an impartial Commission of Experts (Rwanda Commission) to investigate violations of IHL in Rwanda.1 ^ The Preliminary Report of the Commission focused on whether genocide had actually taken place in Rwanda, and whether those individuals responsible should be prosecuted before an international criminal court. ^ ^ Sexual violence is not referred to in this Report.

103 104 105 106 107 108 109 110 111 112

See African Rights, supra note 100, at 778. Ibid, at 769. "Interahamwe" is the term used for collective militia in Rwanda. See Human Rights Watch, supra note 100, at 16-18. Ibid, at 18. Ibid. See African Rights, supra note 100, at 750. Ibid, at 74$. Ibid, at 749; and see Human Rights Watch, supra note 100, at 35. See African Rights, ibid, at 750. On several occasions, the Security Council did make specific reference to the deaths of innocent civilians including women. See for example, UN DocS/RES/912 (1994); and S/RES/918 (1994). However, no reference was made to acts of sexual violence against women. 113 See UN Doc S/RES/935/1994 (1 July 1994). 114 Preliminary Report of the Independent Commission of Experts established in accordance with Security Council Resolution 935 (1994), UN Doc S/1994/1125 (4 Oct 1994).

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The Final Report of the Rwanda Commission, however, does refer to sexual violence, although in limited terms. 1J5 The Report notes allegations compiled by NGOs, particularly African Rights, regarding the rape and abduction of women and girls. The Rwanda Commission designates rape as an "egregious" breach of IHL, and a crime against humanity, and there is some discussion of the legal norms prohibiting rape in the Final Report.11^ In addition, in 1994, the Human Rights Commission appointed a Special Rapporteur for Rwanda. ^ Some of the later reports of the Special Rapporteur, recognise the particular vulnerability of women during the conflict in Rwanda, and make specific reference to sexual violence. In January 1996, the Special Rapporteur reported that "[r]ape was systematic and was used as a 'weapon' by the perpetrators of the massacres ..." and that "[according to consistent and reliable testimony, a great many women were raped; rape was the rule and its absence was the exception."118. Overall, the incidence of sexual violence during the conflict in Rwanda was only belatedly recognised by the Special Rapporteur and the Rwanda Commission, and it appears no primary investigations regarding sexual violence were carried out. Instead, information provided from other sources, primarily NGOs such as Human Rights Watch, was relied on. The same pattern of silence in relation to sexual violence is evident in the context of the establishment of the ICTR. The Security Council decided that the flagrant violations of IHL committed during the conflict in Rwanda constituted a threat to international peace and security. The Council further determined that the prosecution of offenders before an international tribunal would contribute to the restoration and maintenance of international peace and security.11'5

115 Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 935 (1994), UN Doc. S/1994/1405 (9 Dec 1994). 116 Ibid, at paras 137-145. 117 Rene Degni-Segui was appointed Special Rapporteur pursuant to resolution E/CN.4/S-3/1 (25 May 1994). His reports include: Special Rapporteur of the Commission on Human Rights, Report on the Situation of Human Rights in Rwanda, UN Doc E/CN.4/1995/7 (28 June 1994); Special Rapporteur of the Commission on Human Rights, Report on the Situation of Human Rights in Rwanda, UN Doc E/CN.4/1995/12 (12 Aug 1994); Special Rapporteur of the Commission on Human Rights, Report on the Situation of Human Rights in Rwanda, UN Doc E/CN.4/1995/70 (11 Nov 1994); Special Rapporteur of the Commission on Human Rights, Report on the Situation of Human Rights in Rwanda, UN Doc E/CN.4/1996/7 (1996); Special Rapporteur of the Commission on Human Rights, Report on the Situation of Human Rights in Rwanda, UN Doc E/CN.4/1996/68 (29 Jan 1996) [hereinafter Degni-Segui ]an 1996 Report]; Special Rapporteur of the Commission on Human Rights, Report on the Situation ofHuman Rights in Rwanda, UN Doc E/CN.4/1997/61 (20 Jan 1997) [hereinafter Degni-Segui Jan 1997 Report]. 118 Degni-Segui Jan 96 Report, ibid, at para 16. The number of rape victims was estimated at between 250,000 and 500,000, see Degni-Segui Jan 96 Report, ibid; Degni-Segui Jan 97 Report, ibid, para 29. 119 UN Doc S/RES/955 (8 Nov 1994).

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Whereas in the resolutions establishing the ICTY sexual violence against Muslim women was specifically mentioned, there was no reference to sexual violence against women in Rwanda in the resolution creating the ICTR. The decision of the Security Council to establish the ICTR was primarily based upon the Preliminary Report of the Rwanda Commission, 120 which made no reference to sexual violence. Nor was sexual violence mentioned during the Security Council debates on the issue. Furthermore, the ICTR has been extremely slow to address crimes committed against women in Rwanda. 121 The response of the UN to the treatment of women in the former Yugoslavia and Rwanda was inconsistent. There are a number of possible explanations for this phenomenon and these may indicate whether there has been a fundamental change in the attitude of the UN towards crimes of sexual violence during armed conflict. Focus on killings One explanation for the failure of the UN to respond to sexual violence in Rwanda is that the magnitude of the killings in that conflict over-shadowed all other abuses. 122 Investigative teams clearly gave priority to determining who was responsible for these activities. However, horror at the slaughter that took place in Rwanda does not justify the failure to investigate other atrocities. Women constitute approximately seventy percent of the surviving population in Rwanda, and approximately fifty percent of house-holds are now headed by women. 12 ^ Addressing crimes of sexual violence committed against women is a crucial aspect of restoring and rehabilitating the community that remains. Moreover, sexual violence was intricately linked with the overall genocidal strategy during the conflict. The primary focus on killings, to the exclusion of other crimes, led to an unsophisticated investigation of this crime. The ICTR has now acknowledged that sexual violence was an integral part of the genocide in Rwanda. 124

120 See L Sunga, "The Commission of Experts on Rwanda and the Creation of the International Criminal Tribunal for Rwanda: A Note", (1995) 16 HRLJ 121 at 123. 121 See the further discussion infra Chapter 6. 122 Human Rights Watch comments that "[t]he main focus has been on the killings and not as many women were killed." Human Rights Watch, supra note 100, at 89. 123 Ibid, at 2. 124 See the further discussion of genocide and the ICTR infra Chapter 6 notes 89 ff and accompanying text.

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African v European conflict The intersection of race and gender is fundamental to understanding the response of the international community to the conflict in Rwanda. It has been suggested that "the plight of African victims [does] not generate the same outcry as the suffering of Europeans."125 The failure of the international community to prevent the conflict in Rwanda has been explained along these lines. The response may have been inadequate for reasons relating to race, but within the framework of even that inadequate response, the experience of African women has been particularly invisible. It cannot simply be a question of race. This raises the question of how sexual violence against black African women by black African men is perceived by the international community. The fact that rape in the former Yugoslavia was perpetrated by white men against white European women is a relevant consideration in understanding the response to that conflict.12*' There is historical evidence supporting the view that Western legal systems have not treated the rape of black women as seriously as the rape of white women.127 ] n ^ g context of the Security Council, the agenda for action is dominated by the interests of Western powers, particularly the US. Perhaps herein lies part of the explanation for the initial failure to respond to the sexual violence perpetrated against black women in Rwanda. Cultural differences It has been argued that Rwandan women are inhibited from coming forward to talk about sexual violence, and that cultural taboos against speaking of rape are particularly strong in the African context. 128 Difficulty investigating sexual violence is not unique to Rwanda or to Africa. The Yugoslav Commission identified several obstacles to the investigation of rape in the former Yugoslavia.12^ Generally speaking, victims are reluctant to report sexual violence. In most societies there is also a great deal of shame associated with rape. In the former

125 See P Akhavan, "The International Criminal Tribunal for Rwanda: The Politics and Pragmatics of Punishment", (1996) 90 AJIL 501. See also C Chinkin, "Kosova: A Good or Bad War?", (1999) 93 AJIL 841 at 847 (referring to the selective approach of the UN to military intervention on behalf of the victims of human rights abuses). 126 See R Copelon, "Surfacing Gender: Re-Engraving Crimes against Women in Humanitarian Law", (1994) 5(2) Hast Women's 1/243, at 244-245. 127 For example, in the African-American context, see K Crenshaw, "Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics", (1989) The University of Chicago Legal Forum 139 at 157; and A Harris, "Race and Essenrialism in Feminist Legal Theory", (1990) 42 Stan LR 581 at 599. 128 See Human Right's Watch, supra note 100, at 95. 129 Annex IX, supra note 80, pt IA.

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Yugoslavia this was a particularly significant factor as great importance is placed upon the virginity and chastity of Muslim women. Victims of sexual violence are ostracised in these communities.13° There was, furthermore, a fear of reprisals in the context of an on-going conflict situation, where victims and perpetrators live in close proximity. The passage of time since the commission of the crimes, together with the migration of many survivors, exacerbated the difficulties in collecting evidence. Finally, victims often expressed a fear that reporting of sexual violence would be useless, and indicated general scepticism about the ability or commitment of the international community to improving their situation. Similar problems were identified by NGOs investigating sexual violence in Rwanda. 131 Nevertheless, the Yugoslav Commission concluded that, despite the associated difficulties, most of those interviewed expressed a willingness to consider testifying before the ICTY. 132 In the context of Rwanda, Human Rights Watch reject as "patently false", claims that Rwandan women would not talk about their ordeals. 133 In their view, women were willing to talk, provided that steps were taken to ensure the comfort of the women concerned, such as the use of female investigators and interpreters. 1 ^ As the work of the ICTR has progressed, it has become clear that many Rwandan women are willing to speak out about the crimes committed against them. 1 ^ Furthermore, following her mission to Rwanda in 1997, the Special Rapporteur on Violence against Women has reported that she had "no problem eliciting information and testimonies from victims and witnesses" and that "encouraged and supported by women's organisations, women victims of violence seem to believe that speaking is cathartic and may in fact lead to justice." 1 ^ It is a lack of commitment on the part of the UN to deal sensitively with the issue, rather than any "cultural" difference, that explains the failure to effectively address the issue of sexual violence in Rwanda. Ultimately it is for each

130 See for example, Helsinki Watch, War Crimes in Bosnia-Herzegovina (1993) 171-172 (describing the experience of young Muslim women in the former Yugoslavia). 131 See Human Rights Watch, supra note 100, at 24. 132 Set Annex IX.A, Sexual Assault Investigation, UN Doc S/1994.674/Add.2 vol V (28 Dec 1994) pt IA. 133 See Human Rights Watch, supra note 100, at 25 (recounting these arguments). 134 Ibid, at 25-26. See also D Orentlicher, No Justice, No Peace: Accountability for Rape and GenderBased Violence in the Former Yugoslavia (1993) 30 (emphasising the critical importance of the sex of the interviewer). 135 See for example, the case of Witness JJ, infra Chapter 6, notes 235-238 and accompanying text. 136 Report of the Special Rapporteur on Violence against Women, its Causes and Consequences, Ms Radhika Coomaraswamy of the Mission to Rwanda on the Issues of Violence against Women in Situations of Armed Conflict, UN Doc. E/CN.4/1998/54/Add.l (4 Feb 1998) [hereinafter Coomaraswamy Rwanda Report] pt IIIA.

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individual woman to decide whether she wishes to talk about her experience, and to seek legal redress. 137 However, she must be afforded a genuine choice. The role of lobbying forces The influence of key individuals has been a significant factor in determining the response of institutions created by the Security Council to address issues arising from armed conflict. For example, it appears that the Chairman of the Yugoslav Commission, M Cherif Bassiouni,^ was moved by the plight of young rape victims and was challenged by the prospect of clarifying some of the legal questions surrounding sexual violence in armed conflict. ^ 9 Funds originally destined for other investigations in the former Yugoslavia were diverted towards an investigation into sexual violence in that conflict, under the leadership of Bassiouni. ^ Even so, the "rape inquiry" of the Yugoslav Commission encountered significant hurdles, including crippling funding delays and disagreement amongst Commission members as to the conduct of the investigations.1^1 NGOs and other lobbying forces played a critical role in highlighting the issue of sexual violence in the former Yugoslavia.1^2 The war in Bosnia was preceded by two decades of work by feminists to have rape acknowledged as a serious crime. ^ 3 Individual women, and women's groups in the former Yugoslavia, were particularly effective at ensuring that information about what was happening to women during the conflict reached the international community. 1 ^

137 See also C Chinkin, "Rape and Sexual Abuse of Women in International Law", (1994) 5 EJIL 326 at 337. 138 Following the resignation of Fritz Kalshoven, M Cherif Bassiouni served as Chairman of the Yugoslav Commission from 19 October 1993- See Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780 (1992)x UN Doc S/1994/674 (27 May 1994) para 7. 139 See Guest, supra note 82, at 86. 140 Ibid. See also The Prosecutor v Karadzic and Another, Rule 61 Proceedings, Case No IT-95-18, Transcript Tuesday 2nd July 1996 (comments of witness Christine Cleiren confirming that "responsibility for the sexual assault investigation was with the Chairman, Professor Bassiouni (sic) ...") 141 See generally Guest, supra note 82, at 85-89. 142 See for example the discussion supra notes 65-68 and accompanying text, and infra Chapter 6 notes 262-264 and accompanying text. 143 See Enloe, supra note 65, at 222. 144 Groups assisting women in the former Yugoslavia include: Center for Women Victims of War (Zagreb); Kareta (Zagreb); The Organization of Women of Bosnia-Herzegovina (Zagreb); Tresnjevka: (Zagreb); SOS (Belgrade); Center for Anti-War Action (Belgrade); and Humanitarian Law Fund (Belgrade). See also Enloe, ibid, at 222 (writing that women's groups in the former Yugoslavia had personal contacts with editors of various feminist magazines, who reported news of the rapes in a gender sensitive manner).

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Undoubtedly, the response of the UN to sexual violence in the former Yugoslavia was influenced by many of these factors. However, some two years later, women's groups in Rwanda were unable to exert the same influence over the international community, and pressure for redress was slower to build. 145 I n the years following that conflict, there have been increased efforts by the international N G O community to assist women who have suffered sexual violence. 1 ^ In 1995, at the Fourth World Conference on Women in Beijing, an N G O women's human rights tribunal, similar to the one held at the Vienna Conference, was organised. 147 Amongst those testifying were women who had survived sexual violence during the conflict in Rwanda. 148 The Perceived Role of Sexual Violence in the Former Yugoslavia and Rwanda Initially, sexual violence in Rwanda was perceived to reflect more closely the traditional pattern of sexual violence during armed conflict. Although African Rights and Human Rights Watch both argued from the outset that there were genocidal aspects to the sexual violence in the Rwandan conflict, there was no widespread media-generated perception that a systematic policy of sexual violence had been employed. In contrast to the case of the former Yugoslavia, there were no reports of detention camps created specifically for sexual violence, nor of sexual violence being committed pursuant to orders. Some writers have argued that sexual violence during armed conflict has traditionally been considered a private matter, and that for this reason it has been ignored by the international community. 1 ^ The intimate connection of the sexual violence in the former Yugoslavia with the war effort, however, gave it a

145 Groups offering assistance to Women in Rwanda include: Association for Widows of the April genocide (AVEGA); Pro-femmes Twese Hamwe; Association Hagaruka; Association rwandaise des femmes des medias; and Asoferwa. 146 For example, the NGO Coalition for Women's Human Rights in Conflict Situations, coordinated by the International Centre for Human Rights and Democtatic Development in Montreal, has various programmes aimed at promoting justice for women who were subjected to sexual violence during the 1994 conflict in Rwanda, including the appointment of a gender monitor in Rwanda. Furthermore, various amicus curiae briefs have been submitted by women's rights advocates to the ICTY and the ICTR. See the discussion of the role played by women's NGOs in the context of the ICTR and the ICTY infra Chapter 6 notes 262 ff and accompanying text. 147 See the discussion of the Vienna Conference supra note 66 and accompanying text. 148 N Reilly ed, Without Reservation: The Beijing Tribunal on Accountability for Women's Human Rights (1996) 9. 149 See for example, A Levy, "International Prosecution of Rape in Warfare: Nondiscriminatory Recognition of Enforcement", (1994) 4(2) UCLA Women's Z/255 at 261-262; and M Bassiouni & P Manakus, The Law of the International Criminal Tribunal for the Former Yugoslavia (1996) 557-558, note 154.

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political dimension, thus removing it from the private realm. The international community perceived the sexual violence as an integral part of the hostilities, and no longer as something peripheral to the main event that inevitably happened to women during armed conflict.^0 Moreover, sexual violence became more than a crime against the honour of the individual woman. It became a crime against the entire Muslim community. This sentiment is reflected in the statements of UN bodies involved in the investigation of the sexual violence in that conflict. There was a preoccupation with systematic sexual violence carried out in conjunction with policies of ethnic cleansing, and a comparative lack of concern about sexual violence in other contexts.1^1 The existence of detention camps in which sexual violence was perpetrated, and the relationship between these camps, are continuously emphasised in the reports. Thus, it appears that sexual violence in the former Yugoslavia was taken seriously, not because of its impact upon women as human beings, but rather because of the effect it had upon the targeted ethnic community. In the case of Rwanda, there was no widespread perception that a deliberate policy of systematic sexual violence had been employed. In these circumstances sexual violence, at least initially, was perceived to be incidental to the fighting, despite its massive scale and brutal nature. Subsequent Developments

Subsequent developments confirm the suspicion that the response of the Security Council to sexual violence in the former Yugoslavia was dictated by the specific circumstances of the perceived use of rape in that conflict. Widespread sexual violence continues to characterise armed conflicts.1^ T n e issue, however, has not subsequently attracted the attention of the Security Council. Furthermore, the response of the international community to violations of IHL in Kosovo during 1999 indicates that the focus of attention in the context of sexual violence remains confined to situations where systematic rape is perceived to be a method of warfare, particularly in cases involving the establishment of rape camps. As NATO intensified its involvement in the Kosovo

150 On historical perceptions of wartime rape, see Brownmiller, supra note 28, at 31-113; Chinkin, supra note 137, at 326-328; and T Meron, "Rape as a Crime Under International Humanitarian Law", (1993)87 4/71424. 151 For example, it was reported in the Human Rights Commission that "[djuring 1996, the Special Rapporteur received some allegations of rape incidents, although it would appear prima facie that those cases do not fall within the context of systematic and concerted practices." Report of the Secretary-General on Rape and Abuse of Women in the Areas of Armed Conflict in the former Yugoslavia, UN Doc A/51/557 (25 Oct 1996) para 8. 152 See for example, the sources cited regarding sexual violence in East Timor, supra Chapter 2 note 73.

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conflict, reports of rape camps became prevalent. The Pentagon issued a statement that it believed that young Kosovar women had been herded into Serb army training camps, and raped by troops. These abuses were described as "a very eerie and disturbing echo of documented instances of rape and killing of women in Bosnia during the Bosnian war." 1 ^ The manner in which these reports were circulated, and the absence of credible information to support such allegations, suggests that behind the facade of concern was the ulterior motive of garnering international support for the intervention by NATO in Kosovo. Undoubtedly, rape was widespread and systematic during the Kosovo conflict. For example, Human Rights Watch documented the terrorisation of the civilian population through a pattern of gang rapes by Serbian and Yugoslav forces.154 However, Human Rights Watch specifically deny any evidence of rape camps, and criticised the US and UK governments for spreading unconfirmed reports of such practices. ^55 e.

The U N Special Rapporteurs on Thematic Issues Related to Sexual Violence during Armed Conflict

Two thematic rapporteurs have been appointed with mandates directly concerning the issue of sexual violence during armed conflict. *56 One of these, the Special Rapporteur on the Question of Systematic Rape and Sexual Slavery and Slavery-like Practices During Wartime, submitted a preliminary report in July 1996, 157 and a final report in 1998. 158 The mandate of the Special Rapporteur

153 V Loeb & R Smith, "U.S. Reports Detail Atrocities in Kosovo", (18 April 1999) Guardian Weekly (reporting comments by US Defense Department spokesman Kenneth Bacon). See also D Storey, "Kosovo Women Raped at Army Camp-US Report", (9 Apr 1999) Reuters (commenting that reports of atrocities from Kosovo "inflamed Western public opinion, increasing support for NATO's air campaign."). 154 Human Rights Watch, Kosovo: Rape as a Weapon of "Ethnic Cleansing" (2000). See also the further sources cited regarding the prevalence of rape in Kosovo supra Chapter 2 note 81. 155 See for example, "Serb Officers Backed Kosovo Gang Rapes", (21 Mar 2000) BBC News (reporting criticisms made by Human Rights Watch about the use of unconfirmed reports of rape camps by NATO leaders). 156 Some country rapporteurs have also considered sexual violence during armed conflict within the course of their studies. See for example, the reports of the Special Rapporteur for the Former Yugoslavia, supra notes 98 and 99; and the Reports of the Special Rapporteur for Rwanda, supra notes 117. 157 Preliminary Report, UN Doc E/CN.4/Sub.2/1996/26 (16 July 1996). 158 Gay McDougall, Final Report, UN Doc E/CN.4/Sub.2/1998/13 (22 June 1998) [hereinafter McDougdl 1998 Final Report].

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has been extended to enable the submission of an additional report to the Commission.159 The primary motivation for the appointment of the Special Rapporteur to examine this topic was to increase the recognition of crimes committed against the "comfort women".160 The Special Rapporteur identified three main purposes of the mandate. First, to "reiterate the call for a response to the use of sexual violence and sexual slavery during armed conflict." Secondly, "to emphasise the true nature and extent of the harms suffered by women who are raped, sexually abused and enslaved by parties to an armed conflict." Finally, to "examine prosecutorial strategies for penalising and preventing international crimes committed against women during armed conflict."161 The Final Report of the Special Rapporteur examines, from a feminist perspective, the legal framework for prosecuting sexual slavery and sexual violence under international law. In another welcome development, the Final Report also focuses significant attention on the issue of redress (including compensation), for women who have been subjected to systematic sexual violence, and finds that "[u]nder customary international law, the Government of Japan must provide redress for the atrocities perpetrated against the "comfort women"".162 Such redress should include payment directly to individual women, or to their governments, who should ensure its distribution to the women concerned.163 The Special Rapporteur also recommends that the UN should work towards the prosecution of persons responsible for the crimes committed against the "comfort women".164 In particular, the Special Rapporteur identifies several concrete steps to be taken by the UN High Commissioner for Human Rights, in conjunction with Japanese officials. 165 The Special Rapporteur also recommends that the Government of Japan be required to report to the UN Secretary-General at least twice a year, on progress made towards redress for the "comfort women".166

159 Commission on Human Rights Decision 1999/105, Systematic Rape, Sexual Slavery and Slavery-Like Practices During Armed Conflict, Including Internal Armed Conflict, UN Doc E/CN.4/DEC/ 1999/105 (29 Apr 1999). See also Note by the Secretariat, Systematic rape, sexual slavery and slavery-like practices during armed conflict, including internal armed conflict, UN Doc E/CN.4/Sub.2/ 1999/16 (17 June 1999) (indicating that the additional report will be available at the 52nd session of the Sub Commission). 160 McDougall 1998 Final Report, supra note 158, at para 6. 161 Ibid, at paras 9-11. 162 Ibid, Appendix para 31. 163 Ibid. 164 Ibid, Appendix para 63. 165 Ibid. 166 Ibid, Appendix para 67.

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The second thematic mandate relevant to the issue of women and armed conflict, is that of violence against women. In 1994, the Commission on Human Rights appointed a Special Rapporteur on Violence against Women, its Causes and Consequences, for an initial period of three years. 167 From the commencement of her work, the Special Rapporteur made it clear that "all violations of the human rights of women in situations of armed conflict, and in particular, murder, systematic rape, sexual slavery and forced pregnancy ..." would be covered by her mandate. 168 Accordingly, the Special Rapporteur has considered the topic of armed conflict as part of her work on violence against women perpetrated or condoned by the State. In her Preliminary Report, the Special Rapporteur focuses on, inter alia, the issue of sexual violence during armed conflict, including the treatment of refugee women. In the latter context, the Special Rapporteur makes a number of recommendations designed to improve the situation of refugee women and girls, including the access of women to medical services, and stresses the importance of the participation of women in the administration of refugee camps. 169 In 1998, the Special Rapporteur compiled a more detailed report, specifically on violence perpetrated or condoned by the State, and with a significant focus on the issue of sexual violence against women during armed conflict; while in custody; and against refugee and internally displaced women. 170 The report discusses the international legal framework regulating sexual violence from a feminist perspective, and contains recommendations for future improvements.

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The Beijing Conference on Women and Subsequent Developments: A Broader Approach to the Impact of Armed Conflict on Women

a.

The Beijing Platform for Action 171

In the early 1990s, sexual violence during armed conflict was identified as an integral part of the broader campaign to address the issue of violence against women. While this resulted in the first widespread consideration of the issue

167 Commission on Human Rights Resolution, 1994/45. The mandate of the Special Rapporteur was extended for a further three-year period in 1997, Commission on Human Rights Resolution, 1997/44. 168 Coomaraswamy 1994 Preliminary Report, supra note 61, at para 7. 169 Ibid, atpara310(c), (d). 170 Report of the Special Rapporteur on Violence against Women, its Causes and Consequences, Ms Radhika Coomeraswamy, UN Doc E/CN.4/1998/54 (26 Jan. 1998) [hereinafter Coomaraswamy 1998 Report]. 171 Beijing Declaration, and Beijing Platform for Action, supra note 7.

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from a feminist perspective, the many other ways that women are affected by armed conflict were overshadowed. However, since the mid-1990s, there have been signs that the focus of international concern has begun to expand to include other consequences of armed conflict for women. At the Beijing Conference, women and armed conflict was identified as one of the twelve critical areas of concern to be addressed by Member States, the international community and civil society.1''2 Paragraph 44 of the Beijing Platform for Action, calls on "[governments, the international community and civil society, including non-governmental organisations and the private sector"... "to take strategic action", inter alia, in relation to the "[t]he effects of armed or other kinds of conflict on women, including those living under foreign occupation".^ Although sexual violence remains a central focus,!74 t n e Beijing Platform for Action places the issue of armed conflict in a broader framework. For the first time, the general vulnerability of women to the adverse effects of armed conflict is formally linked to the discrimination and disadvantage they are subjected to in many areas of life: "[w]hile entire communities suffer the consequences of armed conflict and terrorism, women and girls are particularly affected because of their status in society and their sex." J75 The Platform for Action recognises that nowadays civilian casualties often outnumber military casualties, and that women and children are a significant number of the victims. ^ Attention is then drawn to a number of aspects of armed conflict of particular significance for women, namely: the incidence of gross and systematic violations of human rights that occur against women in armed conflict, and the disregard thereof by IHL and human rights law; the suffering of women living in poverty, particularly rural women, from the effects of indiscriminate means of warfare, such as land mines; !77 the impact of the aftermath of conflict, as women become head of the household, sole parents, and are left to care for injured combatants and elderly relatives; J78 the role of women in preserving the social order amidst conflict;1?? ancJ the importance of the full participation of women in conflict prevention and resolution.180

172 173 174 175 176 177 178 179 180

Ibid. Ibid. Ibid, at para 131. Ibid, at para 135. Ibid, at para 133. Ibid, at para 138. Ibid, at para 133. Ibid, at para 139. Ibid, at paras 133 and 139.

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Having diagnosed the nature of the problem of women and armed conflict, the Beijing Platform for Action proposes a number of "strategic objectives", and the action to be taken by relevant actors to achieve these aims. 182 For example, to "increase the participation of women in conflict resolution and decision making levels and [t]o protect women living in situations of armed and other conflict and under foreign occupation", 183 Governments and the United Nations are, inter alia, called on to "integrate a gender perspective in the resolution of armed or other conflicts and foreign occupation .. ,". 18 ^ To achieve the reduction of the "incidence of human rights abuse in conflict situations", 185 the Platform calls for the upholding and reinforcement of the norms of IHL and human rights law in relation to these offences against women, and the prosecution of all those responsible. The incorporation of gender-sensitivity into training programs for UN peacekeepers and humanitarian aid workers is also advocated.18^ A further strategy of the Beijing Platform for Action to address the impact of armed conflict on women is the promotion of the contribution of women to fostering a culture of peace.18^ One method of achieving this result is "the development and dissemination of research on the physical, psychological, economic and social effects of armed conflicts on women ... with a view to developing policies and programmes to address the consequences of conflicts".188 Finally, the Beijing Platform for Action addresses the situation of refugee and displaced women, the majority of whom nowadays have fled situations of armed conflict. 189 The actions to be taken by relevant actors to address their situation should take account of the discrimination that such women experience in access to essential supplies, shelter, medical care and education. 181

To some extent, these trends have continued in the context of action taken in follow-up to the Beijing Conference, indicating a more widespread appreciation of the effect of armed conflict on women.

181 See ibid, at paras 131-141. 182 The Beijing Platform for Action (ibid) proposes six strategic objectives to address the effects of armed conflict on women. 183 Ibid, Strategic Objective E 1. 184 For an analysis of whar has been done in the context of mainstreaming in the UN human rights field, see A Gallagher, "Ending the Marginalization: Strategies for Incorporating Women into the United Nations Human Rights System", (1997) 19 HRQ283 at 288. 185 Beijing Platform for Action, supra note 7, Strategic Objective E 3186 Ibid, at para 145(e). 187 Ibid, Strategic Objective E 4. 188 Ibid, at para 146(c). 189 Ibid, Strategic Objective E 5.

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The Commission on the Status of Women

The Commission on the Status of Women (CSW) is responsible for co-ordinating the follow-up to the Beijing Conference.19° J n orcler to assist the CSW in its deliberations the Division for the Advancement of Women, organised expert group meetings on issues relating to women and armed conflict. In particular, the participation of women in political decision-making and conflict resolution, 191 and gender-based persecution, were considered.192 Women and armed conflict was one of the four critical areas of the Beijing Platform for Action considered during the 42n<^ Session of the Commission on the Status of Women in March 1998. This was the first time that the general issue of women and armed conflict had been considered by the Commission since the early 1970s, when the protection of women and children in emergency and armed conflict situations had been addressed.193 Several notable developments in that twenty four year time period can be observed. For example, the discussion of women and armed conflict at the 42"^ Session of the Commission was not combined with the issue of children and armed conflict. Neither was the recognition of the specific needs of women affected by armed conflict limited to their roles as mothers and care-givers, but covered a broad range of issues, including the needs of women with disabilities, and refugee women. The prevalence of sexual violence, including its physical and psychological consequences, was a central feature of the discussions and the resulting Agreed Conclusions.19^ Significant emphasis was also placed on issues relating to sex-balance, genderexpertise, and gender-training in all mechanisms dealing with armed conflict. The emphasis on gender-sensitive enforcement of IHL reflects developments in this area, particularly the advent of the ad hoc tribunals for the Former Yugoslavia and Rwanda, and the adoption of the Rome Statute for the International Criminal Court.195 The importance of the participation of women

190 The GA (UN Doc A/RES/52/231) conducted a Special Session in June 2000 to appraise and assess the progress achieved in the implementation of the Beijing Platform for Action. The Commission on the Status of Women was designated as the preparatory committee for the review. See the further discussion of the review infra note 216 ff and accompanying text. 191 UN Doc EGM/PRDC/1996/Rep.l (7 Nov 1996), and endorsed in ECOSOC "mainstreaming resolution" 1997. The meeting was jointly organised by the Division and the International Peace Research Institute in Oslo. 192 Report of the Expert Group Meeting, Gender Based Persecution, Toronto, 9-12 November 1997, UN Doc EGM/GBP/1997/Report (1997) 1. 193 See the discussion supra notes 8 ff and accompanying text. 194 See Report of the 42nd Session of the CSW, UN Doc E/CN.6/1998/12 (1998). 195 See the further discussion of these mechanisms infra Chapter 6.

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in peace processes, and post-conflict reconstruction and development, was recognised. In addition, there was express recognition of the social and economic impact of armed conflict on women, especially in the context of "women-headed households and widows", and the impact of economic sanctions on women. Finally, the issue of redress, particularly rehabilitation, and the responsibilities of governments and international organisations to provide redress for women, was emphasised. *96

c.

The Special Rapporteurs

While the Special Rapporteur on Systematic Sexual Slavery, in accordance with her mandate, has limited her focus to the issue of sexual violence, the Special Rapporteur on Violence against Women has taken a progressively broader view of the effect of armed conflict on women. Her 1998 report on violence against women perpetrated or condoned by the State includes a brief section on the "economic and social consequence" of armed conflict, which recognises that violence during armed conflict results in denial of basic amenities and supplies to the civilian population. Such developments particularly affect women, who are frequently left to provide for the needs of their families. The Report emphasises that the empowerment of women must be an integral part of post-conflict economic reconstruction. In addition, the importance of assisting with the rehabilitation of women who have experienced trauma, particularly survivors of sexual violence, is raised. 1 ^ To this end, the Report recommends that States should provide "economic, social and psychological assistance to victim-survivors of sexual violence during times of armed conflict."^ s NGOs are also called upon to "provide support services for women victims of armed conflict including economic empowerment and social, psychological and support programmes." 1 ^ The Special Rapporteur on Violence against Women further recommends the provision of more female doctors and health professionals with training on gender issues to meet the gynaecological and related care needs of refugee women, particularly those who have survived gender-based violence. 200 It is also suggested that "[confidential medical assistance, legal assistance, and culturally appropriate, community-based psycho-social counselling for victims and their

196 197 198 199 200

See Report of the 42nd Session of the CSW, UN Doc E/CN.6/1998/12 (1998). Coomaraswamy 1998 Report, supra note 170, Section ID. Ibid, Recommendations, National. Ibid, Recommendations, Non-governmental Organisations. Ibid, pt III F, Recommendations para 2.

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families should be provided to prevent rejection of and attachment of social stigma to the victims."201 The Special Rapporteur issued a separate report on her 1997 mission to Rwanda, and to the International Criminal Tribunal for Rwanda in Tanzania, which includes information on the social, economic, and health problems facing women after the 1994 conflict.202 The Special Rapporteur also highlights problems with the UN post-conflict response in Rwanda. She is critical of the lack of a concerted UN strategy for women survivors of the violence, and highlights a lack of gender-training and gender-expertise in the UN Human Rights Field Operation in Rwanda, as well as a lack of support and adequate employment conditions for staff generally. The Special Rapporteur notes some positive steps to address gender issues by certain UN agencies, such as the United Nations Development Programme, and the United Nations Development Fund for Women (UNIFEM). A recommendation is made that "[a] 11 United Nations agencies should design programmes specifically aimed at providing economic and social support for women victims of violence, including income-generating activities, scholarships for their children, medical care, social assistance and food distribution." The 1999 report of the Special Rapporteur on her mission to Indonesia and East Timor, also examines the problem of gender-based violence against women in the broader context of the position of women in society. 2°3 The manner in which the Special Rapporteur has developed her mandate is encouraging, and reflects a more sophisticated approach to the issue of women and armed conflict. Importantly, the Special Rapporteur has made an effort to visit war-torn countries in order to speak to women and women's groups, and to gain understanding of the reality of armed conflict and its aftermath for women. While in accordance with her overall mandate, violence against women has still been at the centre of her studies, the approach she has adopted does not conform to the traditional pattern of artificially compartmentalising the lives of women. Although the work of the Special Rapportuer on Violence against Women provides an important precedent, violence against women and armed conflict is just one part of her mandate, and her ability to comprehensively consider the issue is necessarily limited by the time and resources available to her.

201 Ibid, pt III F, Recommendations para 3. 202 Coomaraswamy, Rwanda Report, supra note 136. 203 UN Doc E/CN.4/1999/68/Add.3 (21 Jan 1999).

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d. The UNHCR Since the early 1990s, the United Nations High Commissioner for Refugees (UNHCR) has adopted policies and implemented programmes to address the distinctive experience of women refugees.20^ The Beijing Platform for Action recognises this work and in particular calls on Governments to disseminate and implement the UNHCR Guidelines on the Protection of Refugee Women, and the UNHCR Guidelines on Evaluation and Care of Victims of Trauma and Violence.205 In its follow-up to Beijing, the UNHCR has focussed on such matters as including a sex balance in the decision-making process in conflict resolution situations and peace building initiatives. For example, the Bosnian Women's Initiative, and the Rwanda Women's Initiative, focus on peace building and reconciliation activities through economic empowerment and development projects for women. 206 Despite these efforts, the UNHCR has acknowledged that "the mainstreaming of gender perspectives in UNHCR programmes remains low" and that "there remains a great deal to be done to ensure that the policy [on the Protection of Refugee Women] and the guidelines [on the Protection of Refugee Women] are being implemented satisfactorily at the field level. "2°7 e.

The Security Council and the Secretary-General

In early 1999, the Security Council requested the Secretary-General to report on means to improve the physical and legal protection of civilians in times of armed conflict. The Secretary-General submitted his report on 8 September 1999-208

204 See for example, UNHCR Policy on Refugee Women, UN Doc A/AC.96/754 (20 Aug 1990); UNHCR, UNHCR Guidelines on the Protection of Refugee Women (1991), and UNHCR, Sexual Violence Against Refugees: Guidelines on Prevention and Response (1995). See also the 1993 UNHCR pilot project on Women Victims of Violence for Somali refugees in Kenya, UN Doc EC/1995/SC.2/CPR.22 (1995) (the project was prompted by the sexual violence committed by bandits and local security personnel in the camps). See further Coomaraswamy 1998 Report, supra note 136 (discussing UNHCR initiatives to reduce the risk of violence for refugee women: Ngara camp, Tanzania; Kenya). 205 Beijing Platform for Action, supra note 7, at para 48. 206 Progress Report on Refugee Women and UNHCR's Framework for Implementation of the Beijing Platform for Action, UN Doc EC/47/SC/CRP.45 (15 Aug 1997) para 18. See also "Rebuilding a Future Together", in UNHCR, Refugee Women (1997); and UNHCR, Refugee Women and UNHCR Implementing the Beijing Platform for Action (1998) 13-19. 207 Progress Report on Refugee Women and UNHCR's Framework for Implementation of the Beijing Platform for Action, UN Doc EC/47/SC/CRP.45 (15 Aug 1997) 24. 208 Report of the Secretary-General to the Security Council on the Protection of Civilians in Armed Conflict, UN DocS/1999/957 (8 Sep 1999).

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In his report, the Secretary-General identifies specific problems faced by women in armed conflict, and acknowledges its differing impact upon men and women.2°5 Moreover, the report also makes limited recommendations to address the distinctive needs of women. For example, the Secretary-General recommends that the Security Council ensures that the UN, and parties to the conflict, address the special protection and assistance requirements of women during armed conflict and in all peacekeeping and peace building operations.210 The need to ensure that peacekeeping units are trained in gender related provisions of human rights law and IHL is identified.211 The problem of the rules of IHL applicable to UN forces has received consideration.212 To some extent, this issue has been clarified by the SecretaryGeneral in his Bulletin on the Observance by United Nations forces of International Law of 9 August 1999.213 The Bulletin specifically refers to women, and reiterates the conventional prohibition on rape; enforced prostitution; and any form of sexual assault. Moreover, it requires that "[w]omen shall be especially protected against any attack, in particular against rape, enforced prostitution or any other form of indecent assault".21^ Section 8 of the Bulletin repeats the requirement of Protocols I and II to the four 1949 Geneva Conventions, that women must be held in separate quarters from men and be under the immediate supervision of women.215 f.

The Beijing Review

In June 2000, a special session of the General Assembly entitled "Women 2000: Gender Equality, Development and Peace for the Twenty-First Century" was held to review the progress made towards implementation of the Platform for Action in thefiveyears following the Beijing Conference. The outcome document adopted by the General Assembly identifies developments taking place in the context of the two UN ad hoc war crimes tribunals and the Statute of the ICC, as among the examples of achievements in the critical area of women and armed

209 Ibid, at para 18. The report also recognises the negative impact of economic sanctions on civilian populations, "especially women and children" (para 25). 210 Ibid, recommendations 20 and 21. 211 Ibid, recommendation 29. 212 See the discussion supra Chapter 4, notes 197 ffand accompanying text. 213 See UN Doc ST/SGB/1999/13 (1999). 214 See S 7 Secretary-General's Bulletin Observance by the United Nations Forces of International Humanitarian Law, UN Doc ST/SGB/1999/13 (6 Aug 1999). 215 Ibid and See Art 75 para 5 Protocol I and Art 5 para 2(a) Protocol II.

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conflict.216 Reference is also made to increased recognition that armed conflict affects women and men differently, as well as the need for women to be involved in decision making concerning conflict resolution. 217 However, the document contains very few concrete initiatives designed to move forward on the problem of women and armed conflict. Most of the proposed actions are vague and general. 218 There is no clear strategy for improving data collection on the situation of women affected by armed conflict, nor for coordinating efforts on this issue within the UN or other sections of the international community. Moreover, there is no recognition of the need to assess whether existing international law applicable during armed conflict is adequate to address the needs of women. Overwhelmingly, the outcome document from the Beijing + 5 Review reflects a failure to move beyond rhetoric in addressing the problem of women and armed conflict, and underlines the urgent need for new approaches to addressing this issue.

6.

A Comparison of Approaches

Previous Chapters considered the approach to women and armed conflict in the IHL framework. It remains to assess whether the shortcomings that we identified in that context are also reflected in the work of the UN on women and armed conflict. To some extent, the way that women have been defined, and their experience of armed conflict has been dealt with in the work of the U N on this issue, bears similarities to the characteristics attributed to women by IHL and the assumptions on which that regime operates. However, there are some important differences. a.

The Impact of Armed Conflict on Women

The failure to understand the impact of armed conflict on women is a significant constraint on the ability of IHL to respond to the needs of women. The same phenomenon can be seen in the UN context. For more than twenty five years after its establishment, the issue of women and armed conflict was not addressed

216 See Unedited Final Outcome document, Further Actions and Initiatives to Implement the Beijing Declaration and Platform for Action, 10 June 2000, para 12. 217 Ibid. 218 See for example, Unedited Final Outcome document, Further Actions and Initiatives to Implement the Beijing Declaration and Platform for Action, 10 June 2000, para 133k bis ("Provide support to empower women who play an important role within their families as stabilising factors in conflict and post-conflict situations").

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within the UN system. This silence reflects a number of perceptions, namely that there were no specific issues affecting women, or that if there were, they were not a priority, or that it was the responsibility of someone else to deal with the issue. All of these factors are discernible in the early work of the CSW on the topic of women and children in emergency and armed conflict situations. There is no on-going mechanism within the UN system for monitoring the impact of armed conflict on women. From time to time, concern has been expressed about the situation of women and armed conflict in various fora, for example, the CSW, the ECOSOC, the General Assembly, the Security Council, the UNHCR, and by various special rapporteurs. However, no particular body has been designated with the primary responsibility for monitoring and improving the situation of women in armed conflict. During the late 1960s and early 1970s, the Secretary-General performed a limited coordination role by compiling information for the CSW from UN documents, the work of relevant UN agencies, the ICRC, and relevant NGOs. However, no such initiative has been undertaken since, despite the numerous UN bodies and affiliated NGOs with potentially relevant information.219 At various times, it has been recognised that there is inadequate information about the impact of armed conflict on women, but little has actually been done to remedy this situation. This failure can be contrasted with developments regarding the impact of armed conflict on children. For example, a comprehensive study has examined the experiences of children in armed conflict,220 and a Special Representative to the Secretary-General has been appointed to ensure adequate follow-up on the issue.221 These initiatives demonstrate a commitment to understanding and

219 Relevant bodies include Division for the Advancement of Women (DAW), United Nations Development Fund for Women (UNIFEM), International Research and Training Institute for the Advancement of Women (INSTRAW), United Nations Children's Fund (UNICEF), United Nations High Commissioner for Refugees (UNHCR), United Nations High Commissioner for Human Rights (UNHCHR), United Nations Development Programme (UNDP), Committee on the Elimination of Discrimination against Women (CEDAW), (and other human rights treaty bodies). 220 Machel 1996 Report, supra note 1. 221 See GA/RES/51/77 (recommending the appointment of a Special Representative to study the impact of armed conflict on children). On 19 Aug 1997 the Secretary-General appointed Olara Otunna to this position. See Protection of Children affected by Armed Conflict, UN Doc A/53/482 (12 Oct 1998) [hereinafter Ottuna 1998 Report}; Protection of Children affected by Armed Conflict, UN Doc A/54/430 (1 Oct 1999); and Additional Report of the Special Representative of the Secretary-Generalfor Children and Armed Conflict, Mr Olara Otunna, Submitted in Accordance with General Assembly Resolution 53/128, UN Doc E/CN.4/2000/71 (9 Feb 2000). Furthermore, on 29 June 1998, there was an open Security Council debate on issues affecting children in armed conflict. See Ottuna 1998 Report, para 104. A second Security Council debate on this issue was held in Aug 1999, and resulted in the adoption of the first formal resolution dealing solely with the protection of children in armed conflict, UN Doc S/RES/1261 (1999).

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responding to the experiences of children during armed conflict that is lacking in relation to women. 222 The identification of women and armed conflict as one of the twelve critical areas of concern in the Beijing Platform for Action placed the issue of women and armed conflict back on the international agenda. However, to achieve its goals, the Platform for Action relies upon coordination and cooperation by a range of actors, both within and external to the UN system. In the absence of a strong mechanism for coordinated action, the effectiveness of the Platform for Action is limited. b.

Causes of Vulnerability during Armed Conflict

In common with IHL, the UN system, to some extent, has recognised the particular vulnerability of women during times of armed conflict. However, as in IHL, the perception initially prevailed that this vulnerability was primarily related to the child-bearing role of women. Women as mothers and care-givers was the major focus of the early work carried out by the CSW on the protection of women and children in emergency and armed conflict. This approach is reflected in the 1974 GA Declaration on the Protection of Women and Children in Emergency and Armed Conflict. There was little recognition of other factors that contribute to the vulnerability of women during armed conflict, particularly the endemic discrimination against women throughout the world that is exacerbated in times of armed conflict. In the mid 1990s, however, the Beijing Platform for Action recognised that the vulnerability of women during armed conflict is a direct consequence of their status in society. This led to a much more comprehensive recognition of the experiences of women during armed conflict, as reflected in the Beijing Platform for Action. c.

Constructions of Sexual Violence During Armed Conflict

For many years, the vulnerability of women to sexual violence was ignored within the UN framework. When sexual violence against women was first raised in the work of the CSW, it was referred to as a regrettable and degrading attack upon the personal dignity of women, reflecting the notions of honour found in IHL. Sexual violence was not recognised as violence, or as a violation of fundamental human rights.

222 See also UN Doc S/RES/1261 (25 Aug 1999).

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This situation changed somewhat in the 1990s, when the UN identified specific types of wartime sexual violence, against certain categories of women, as a grave human rights violation of concern to the international community at large, and one requiring an immediate and effective response. However, it appears that the woman who benefits from this developing concern is likely to be white and Western. Moreover, she must be perceived by the Western media to be the victim of sexual violence as part of a deliberate war strategy. This perception is best demonstrated by the existence of rape camps, and the suspicion that rape has been ordered at the highest levels of the military structure. Sexual violence, committed under other circumstances, regardless of how widespread or brutal, appears to be of little concern. A comparison of the initial response of the UN to sexual violence in the former Yugoslavia, and its response to sexual violence in conflicts such as Rwanda, establishes this point. The same phenomenon can be discerned in the lack of real progress towards providing redress for the "comfort women". d.

Hierarchy of Concern

Overall, the suffering of women in armed conflict is accorded low priority in the UN system, except when it fits within the narrow confines of the pattern of sexual violence described earlier. This subsidiary status of women is consistent with the inferior position of women in IHL. While selected aspects of the suffering of women in armed conflict has been considered at a secondary level of the UN, little has occurred within the most powerful organs of the UN. In particular, the important developments contained in the work of the Special Rapporteurs, are yet to be reflected in the activities of the Security Council, in UN human rights field operations, and UN Peacekeeping operations. The UN was created to "save succeeding generations from the scourge of war". Its record on women and armed conflict, an issue that affects millions of women throughout the world, is evidence of a conspicuous failure of the Charter to achieve its aims. e.

A Compartmentalised Existence

IHL has a very limited field of application. Consequently, it is incapable of addressing many of the problems that women experience, particularly the aftermath of conflict. In some respects, the developments that have taken place in the human rights framework of the UN are less constrained by such boundaries. Human rights law has the potential to take a holistic view of the problems experienced by women as a result of armed conflict. Its norms can apply during times

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of war and peacetime.22^ So for example, Article 39 of the Convention on the Rights of the Child, requires states to address the "physical, and psychological recovery and social re-integration of a child victim of: ... [inter alia] armed conflict".22^ However, there are no comparable provisions in any other human rights instruments, and as a result, there are few specific human rights principles regulating the aftermath of armed conflict. One of the constraints on the expansion of human rights norms into the area of armed conflict, is the deference historically accorded to IHL on all issues relating to armed conflict. The UN has appeared reluctant to address issues relating to the impact of armed conflict because of the perception that IHL is the relevant body of law, and the belief that IHL is the province of the ICRC. This was raised as a concern during the early work of the CSW on women and children in emergency and armed conflict.225 Subsequent developments, most notably the Beijing Platform for Action, have not questioned the extent to which IHL provides adequate protection for women, or raised law reform as a serious possibility.226 Moreover, ever since the adoption of the UN Charter, there have been tensions between the ICRC, as the guardian of IHL, and the UN. This unease is illustrated by the differences that arose early on between the institutions regarding the further development of IHL. The fundamental ordering principle of the UN Charter is the prohibition on the aggressive use of force. Consequently, doubts were expressed within the newly formed UN as to the desirability of the international community addressing the issue of the further codification of the law of war, as it was then known. However, it was in fact the developments in human rights in the UN framework that ultimately led to the adoption by States of the two 1977 Protocols to the four 1949 Geneva Conventions. As early as 1956, the International Committee of the Red Cross (ICRC) had completed a set of Draft Rules for the Limitation of Dangers Incurred by the Civilian Population in Time of War. No action was taken on the draft rules. The question of the further revision of IHL was shelved by the international community until the work undertaken by the United Nations Commission on Human Rights, and the General Assembly on human rights in times of peace, began to

223 224 225 226

See the previous discussion on this point supra Chapter 4 notes 172 ff and accompanying text. Convention on the Rights of the Child, 1989 GA Res 44/25, UN Doc A/44/49 (1989) 166. See the discussion supra notes 8 ff and accompanying text. See J Gardam & M Jarvis, "The Protection of Women in Armed Conflict: The International Response to the Beijing Platform for Action", (2000) 32 Col HRLR 101.

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expand logically into concern for human rights in armed conflict.22^ Nevertheless, despite this common interest, the ICRC has a history of vigorously protecting what it regards as its exclusive area of competence.228 All these factors have contributed to a situation in which the regimes have not developed in a complementary fashion, to the detriment of all victims of armed conflict, and to the significant disadvantage of women affected by armed conflict. f.

An Evolving Woman

The woman that emerges from UN human rights based initiatives on armed conflict has undergone a more dynamic evolution than the woman of IHL. The latter, as defined by the four 1949 Geneva Conventions and Additional Protocols (and the commentaries thereto) has remained static.22^ There are several explanations for this phenomenon. First, the impact of new approaches to dealing with the numerous global problems confronting international law, has been minimal on IHL. The vast majority of IHL norms continue to be drawn from the traditional sources of international law, namely treaties and customary international law. By contrast, a major vehicle for developments in human rights is the so called "soft" law process, which is considerably more flexible.2^0 Secondly, the movement for the recognition of the human rights of women has influenced the approach taken by the UN to aspects of women's wartime experience, particularly sexual violence.2^1 In contrast to IHL, women have been pro-active in many of the developments within the UN framework. However, a mere increase in the numbers of women will not ensure that the concerns of women are adequately recognised. Women comprised the majority of delegates

227 The International Conference on Human Rights held in Teheran in 1968 can be seen as the definitive event in this relationship. See Resolution XXIII, Human Rights in Armed Conflict, adopted by the International Conference on Human Rights, Teheran, 12 May 1968. 228 See C Moorehead, Dunant's Dream: War Switzerland and the History of the Red Cross (1999) 692 ff (describing the challenges posed to the ICRC by the multitude of new actors in the field). 229 The re-interpretation of norms in relation to sexual violence against women, is one area where there has been an indication of changed perceptions in relation to women. See further discussion infra Chapter 6. 230 See C Chinkin, "The Challenge of Soft Law: Development and Change in International Law", (1989) 38 ICLQ 850; F Francioni, '"Soft Law': A Contemporary Assessment", in V Lowe & F Fitzmaurice eds, in Fifty Years of the International Court of Justice (1996) 167. 231 See] Gardam, "Women, Human Rights and International Humanitarian Law", (1998) 324 IKRC 421.

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to the CSW during its early work. Their presence did not prevent the acceptance in the deliberations of that body of the same limited view of women as is evident in IHL. What is required in order to achieve fundamental change is the opportunity for women to challenge the existing framework and introduce new perspectives. 2^2 A major obstacle to confronting the defects of IHL is the powerful role played by the military in the regime. The influence of this institution is not reflected in the human rights regime. It remains to be seen whether the advances that women have made in the human rights based UN system can be extended to the realm of IHL in the future.

232 See generally C Chinkin, "Feminist Interventions in International Law: Reflections on the Past and Strategies for the Future", (1997) 19 AdelLR 1.

CHAPTER 6 INTERNATIONAL REDRESS

1. Introduction In previous Chapters we addressed two inter-related issues. First, how women caught up in armed conflict are perceived within International Humanitarian Law (IHL) and within the United Nations (UN) system, and secondly, the extent to which their needs arising during such times are addressed within these two frameworks. We continue this process in this Chapter, in the context of redress at the international level for women affected by armed conflict.1 We focus on two aspects of redress, namely the prosecution of offenders (through international criminal law applicable in armed conflict) and the provision of compensation to victims.2 Most of the international developments to date have been in these two areas, although with considerably more emphasis on the former. We examine the work of the International Military Tribunal at Nuremberg (Nuremberg Tribunal),3 the International Military Tribunal for the Far East (Tokyo Tribunal),^ the UN Compensation Commission (UNCC),5 Remedies that addtess the direct consequences of injuries, (such as the provision of medical treatment, and rehabilitation), as well as measures of justice, (such as the prosecution of perpetrators, and the payment of monetary compensation), are an integral part of re-building lives, and ultimately establishing a lasting peace. On the role of redress in victim recovery generally, see Y Danieli, "Preliminary Reflections from a Psychological Perspective", in Seminar on the Right to Restitution, Compensation, and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms: Maastricht, 11-15 March 1992, (1992) 196; J Herman, Trauma and Recovery (1992); and N Roht-Arriaza, Impunity and Human Rights in International Law and Practice (1995). Compensation is part of the range of remedies recognised as "reparations" in international law. See Basic Principles and Guidelines on the Right to Reparation for Victims of [Gross] Violations of Human Rights and International Humanitarian Law, UN Doc E/CN.4/1997/104 (16 Jan 1997) paras 1215, (defining "reparations" so as to include restitution; compensation; rehabilitation; satisfaction; and guarantees of non-repetition). Following World War II, the four major allied countries, the United States of America, Britain, France and the U.S.S.R, entered into an Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis at London 8 August 1945 5 UNTS 251. The Agreement contained the Charter of the International Military Tribunal [hereinafter Nuremberg Charter and Nuremberg Tribunal]. The International Military Tribunal for the Far East [hereinafter Tokyo Tribunal] was established by a Special Proclamation by The Supreme Commander for the Allied Powers at Tokyo, 19 Jan 1946, TIAS No 1589, 4 Bevans 20, in order to try the major Japanese war criminals. The Charter of the Tokyo Tribunal was annexed to the Proclamation [hereinafter Tokyo Charter]. The United Nations Compensation Commission [hereinafter UNCC] was established by the UN Security Council pursuant to S/RES/687 (3 Apr 1991).

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the International Criminal Tribunal for the Former Yugoslavia (ICTY),^ the International Criminal Tribunal for Rwanda (ICTR), 7 and the International Criminal Court (ICC). 8 When crimes have been committed during armed conflict, the prosecution of offenders provides confirmation to the victim that they are not responsible for what has happened to them, as well as an opportunity for the victim to tell their story. 9 The prosecution of these crimes by the international community is a statement that the world at large acknowledges the harm done to the victim. An additional element of redress is thus provided. For example, the Commission of Experts established by the Security Council to investigate violations of IHL during the conflict in the former Yugoslavia,10 reported that many of the victims interviewed were particularly comforted by the fact that people had travelled from other countries to hear their stories, and to take action on their behalf. ^ Compensation has a similar symbolic significance,^ as well as considerable practical importance for victims of armed conflict, who frequently have lost their homes, possessions and family support structures. As a result of discriminatory attitudes and practices women not only have distinctive needs in the context of redress for their suffering, but they experience particular problems in obtaining it. Action at the national level will often be the most effective way to provide victims of armed conflict with culturally appropriate redress. ^ However, follow-

6 7 8

9 10 11 12 13

The International Criminal Tribunal for the former Yugoslavia [hereinafter the ICTY] was established by the UN Security Council pursuant to S/RES/808 (Feb 1993); and S/RES/827 (May 1993). The International Criminal Tribunal for Rwanda [hereinafter ICTR] was established by the UN Security Council pursuant to S/RES/955 (Nov 1994). See the Rome Statute of the International Criminal Court, UN Doc A/Conf.183/9 (17 July 1998) [hereinafter Statute of the ICC]. The Statute was adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court on 17 July 1998. See for example, Herman, supra note 1, at 70-73. See UN Doc S/RES/780 (1992), and the discussion on the Yugoslav Commission supra Chapter 5 notes 75 ff and accompanying text. See Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780 (1992), UN Doc S/1994/674/Add.2 vol V (28 Dec 1994) pt V. See Danieli, supra note 1, at 207. See for example, S Swiss & J Giller, "Rape as a Crime in War: A Medical Perspective", (1993) 270(5) JAMA 612 at 614 (in the context of redress for women who have experienced sexual violence during armed conflict). Gender issues also arise in the context of national initiatives. Some commentators have begun to explore such issues in truth and reconciliation processes, particularly in South Africa. See for example, B Goldblatt & S Meintjes, "South African Women Demand the Trum", in M Turshen & C Twagiramariya eds, What Women Do in Wartime, Gender and Conflict in Africa (1998) 27 at 55-66 (emphasising the need to ensure not only gender sensitivity in the formulation of questionnaires, and the training of interviewers and commissioners, but also that procedures acknowledge the difficulties women experience in testifying about sexual violence).

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ing armed conflict, many States lack the requisite resources, legal and administrative processes, or political will to act. In these circumstances, the international community has an important role to play. ^ Although to date, instances of the international community taking action in response to the events that occur in armed conflict are comparatively rare, it is an increasing phenomenon. However, the provision of redress to individual victims does not appear to be the primary motivation for developments in this area. Rather the international community has taken action in response to crimes that it perceives to threaten its own foundations. 15 The degree to which individuals benefit from these measures is determined by the extent to which their interests, and the interests of the international community, coincide. We argue that international criminal law applicable in armed conflict is predicated on a hierarchy of values, and that gender is a factor in the operation of this hierarchy. *6 In the past, the international community was more likely to consider that its interests were damaged by the types of harms that most frequently affect men during armed conflict, rather than by those commonly experienced by women. There are signs of change. The international community increasingly is recognising that the experience of women must be taken into account in determining which acts committed during armed conflict are recognised and prosecuted as crimes. We consider the significance of these developments in terms of redress for women affected by armed conflict. Compensation for victims of armed conflict is an area that requires further consideration by the international community. The establishment of the UNCC, to date, is the sole example of action at the international level designed to ensure the provision of compensation for a broad range of war-related harms. However, developments in the context of the ICC have placed the issue of compensation back on the agenda. We examine the extent to which the needs of women regarding compensation have been acknowledged and addressed in these initiatives.

14

15 16

For example, pursuant to Art 17 Statute of the ICC, a case is inadmissible where it is "being investigated or prosecuted by a State having jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution." See the further discussion infra note 265 ff and accompanying text. See the further discussion infra note 203 ff and accompanying text. As is the case with many of the issues discussed in this work, there are other factors that contribute ro the impact of this hierarchy, such as race and culture.

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International Redress

Women, Discrimination and Redress

Often damaging stereotypes lead women to blame themselves for crimes committed against them, particularly where they involve sexual violence. For example, women who were raped or forced to become "wives" of their captors during the 1994 conflict in Rwanda have been subsequently treated with suspicion. They are accused of using the "sex card" to avoid being massacred alongside the "defenceless" men and children. 17 In such cases, women must receive acknowledgment that they are not responsible for the harms they have suffered, and the prosecution of offenders and the payment of monetary compensation have great symbolic significance. Yet it is especially difficult for these women to speak out about what has happened to them, precisely because of such discriminatory attitudes that give rise to the fear of stigmatisation. Monetary compensation is of considerable practical importance to women who have survived armed conflict.18 The restricted mobility of women, due to their role as care-givers and their low levels of education and marketable skills, afford them fewer options, and thus, less opportunity for economic recovery than men. Women may also have particular financial needs arising out of their distinctive experience of armed conflict. At the end of conflict, many women are left as widows, and/or refugees or displaced persons, and require significant monetary assistance in order to successfully re-establish their lives. Women-headed households generally have lower economic status than male-headed households. ^ Moreover, many women have to cope with the financial implications of

17 18

19

See Testimony of Felicity Umutanguha Layika, in N Reilly ed, Without Reservation: The Beijing Tribunal on Accountability for Women's Human Rights (1996) 40. The importance of compensation for women victims of armed conflict has been acknowledged on several occasions, see for example, Fourth Conference on Women, Action for Equality and Peace, Beijing Declaration and Platform for Action, UN Doc A/Conf. 177/20 (1995) [hereinafter Beijing Platform for Action] para 124(c), (d) and (h); Commission on the Status of Women, Report of the Expert Group on Measures to Eradicate Violence Against Women, UN Doc E/CN.6/1994/4 (21 Jan 1994) para 72; Preliminary Report of the Special Rapporteur on the Situation of Systematic Rape, Sexual Slavery and Slavery-like Practices During Periods ofArmed Conflict, Ms Linda Chavez, UN Doc E/CN.4/Sub.2/ 1996/26 (16 July 1996) paras 74-79; and Report on the Situation of Human Rights in Rwanda Submitted by Mr Rene Degni-Segui, Special Rapporteur of the Commission on Human Rights under Paragraph 20 ofResolution S-3/1 of25 May 1994, UN Doc E/CN.4/1996/68 (29 Jan 1996) para 141. See for example, Report of the Special Rapporteur on Violence against Women, its Causes and Consequences, Ms Radhika Coomarasivamy, Addendum, Report on the Mission to Rwanda on the Issues ofViolence againstWomen in Situations of Armed Conflict, UN Doc E/CN.4/1998/54/Add.l (4 Feb 1998) [hereinafter Coomaraswamy 1998 Report] (referring to the results of a survey carried out in Rwanda by UNFPA).

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sexual violence. These include on-going medical treatment, or the costs associated with pregnancy and/or children resulting from rape. 20 Generally speaking, the limited resources and poor legal literacy of women present significant practical obstacles to their ability to access legal or administrative remedies. Furthermore, access to redress in the international legal system is often dependent upon the willingness of States to make claims on behalf of the victim. When victims lack political and/or economic status, which is often the case with women, States are rarely willing to assist.21 Despite the fact that women often make up the majority of the population at the conclusion of conflict, they are generally absent from post-conflict decision-making, and political structures. 22 Consequently their needs are more readily disregarded or sacrificed to economic and political interests.2^ Stateless persons are amongst the groups most in need of redress, but are the least likely to have claims made on their behalf.2^ The many women who fall within this category are largely dependent upon NGOs, or international organisations, to protect their interests. International organisations are increasingly playing a role in making claims on behalf of stateless persons affected by armed conflict.25 However, their ability to do so depends upon the flexibility of the historically State-centred international legal system.

3.

Prosecuting Crimes against Women

There is a two-tiered hierarchy in the determination of whether the harms associated with armed conflict are addressed by international criminal law applicable to armed conflict. First, these experiences must be regarded as sufficiently "serious" to constitute an international crime. Secondly, crimes committed in armed conflict must "shock the conscience of mankind" before they will be prosecuted

20 21 22 23

24 25

See generally the discussion on the economic impact of armed conflict supra Chapter 2. See C Chinkin, "Peace and Force in International Law", in D Dallmayer ed, Reconceiving Reality: Women and International Law (1993) 203 at 216. See the further discussion of this issue supra Chapter 1 note 41 and accompanying text. For example, see the discussion on the "comfort women", infra note 331 and accompanying text. See also R Copelon, "Surfacing Gender: Reconceptualizing Crimes against Women in Time of War", in A Stiglmayer ed, Mass Rape: The War against Women in Bosnia-Herzegovina (1994) 197 (commenting that "[i]n Bangladesh, amnesty [for mass rape] was quietly traded for independence"). See Chinkin, supra note 21, at 216 (raising the disadvantaged position of stateless persons). See the further discussion infra notes 364-367 and accompanying text, on the role of international organisations in the context of the UNCC and the ICC.

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at the international level. 2^ Gender is a factor in determining how seriously an act is viewed, and whether resources will be devoted to prosecuting it at the international level. For those crimes against women that are recognised and prosecuted at the international level, gender considerations are also relevant to the manner in which the prosecutions are conducted. Rules of evidence, the treatment accorded to victims and witnesses, and other procedures, must be responsive to the needs of women to ensure that the process is positive and does not cause further emotional damage, physical danger, nor inhibit women from coming forward. a.

Gender and What Constitutes a Crime

In the context of international criminal law applicable to armed conflict, the scale of the act increases the seriousness with which it is viewed and, therefore, the likelihood that it will be recognised as an international crime. So, for example, crimes against humanity and genocide are considered particularly serious crimes warranting the heaviest of sanctions by the international community. To establish crimes against humanity, evidence must be produced to show that designated acts were, inter alia, carried out as part of a widespread or systematic attack against a civilian population.2? Genocide, as defined in the Genocide Convention, requires proof of specified acts committed with "intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such." 28 However, it is not only large-scale acts that are considered serious enough to constitute international crimes. War crimes, such as grave breaches of the four 1949 Geneva Conventions2^ and

26

27 28

29

This language is commonly used by members of the international community when referring to the prosecution of international crimes. See the discussion of the rationale for the creation of the ICTY and the ICTR infra notes 199 ff and accompanying text. See the discussion of crimes against humanity supra Chapter 3. Convention on the Prevention and Punishment of the Crime of Genocide, 9 Dec 1948 (78 UNTS 277) [hereinafter Genocide Convention]. See the discussion of the Genocide Convention supra Chapter 3Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 Aug 1949 (75 UNTS 31) [hereinafter First Geneva Convention]; Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 Aug 1949 (75 UNTS 85) [hereinafter Second Geneva Convention]; Geneva Convention relative to the Treatment of Prisoners of War of 12 Aug 1949 (75 UNTS 135) [hereinafter Third Geneva Convention]; Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 Aug 1949 (75 UNTS 287) [hereinafter Fourth Geneva Convention].

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Protocol 1,3° and violations of the laws and customs of war applicable to international and non-international armed conflicts, can arise from isolated acts.3! The designation of acts as "grave breaches" in the 1949 Geneva Conventions and Protocol I, prima facie, reflects an assessment of "seriousness". "Seriousness" is also a factor in determining which acts are "violations of the laws or customs of war", for the purposes of Article 3 of the Statute of the ICTY,32 and which acts should be prosecuted as violations of Common Article 3 and Protocol 11,33 under Article 4 of the Statute of the ICTR.34 This criterion of "seriousness" is reflected in the overall mandate conferred on the ICTY and the ICTR, namely to "prosecute persons responsible for serious violations of international humanitarian law".35 The Appeals Chamber in the Tadic Jurisdiction case held that Article 3 of the Statute of the ICTY covers all violations of customary IHL, other than "grave breaches", provided they are "serious".36 In particular there must be "a breach of a rule protecting important values, and the breach must involve grave consequences for the victim. "37 This interpretation has subsequently been adopted by the ICTR.38

30

31

32

33

34 35 36 37

38

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, adopted in 1977 (Protocol I), (1977) 16 ILM 1391 [hereinafter Protocol I]. See for example, Prosecutor v Delalic and Others, Case No IT-96-21, Judgment (16 Nov 1998) [hereinafter Celebici Judgment] para 178 (confirming there is no requirement that grave breaches, and violations of the laws and customs of war be committed on a widespread or systematic scale). The grave breach of "destruction and appropriation of property" is an exception to this, and arguably must be extensive in order to qualify as a grave breach. See J Pictet ed The Geneva Conventions of 12 August 1949: Commentary IVGeneva Convention Relative to the Treatment of Civilians (1960) 596. Annex to the Secretary-General's Report on Aspects of Establishing an International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia (Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), UN Doc S/25704 (1993 as amended 13 May 1998) [hereinafter Statute of the ICTY]. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non- international Armed Conflicts, adopted in 1977 (Protocol II), (1977) 16 ILM 1442 [hereinafter Protocol II]. See Statute of the International Criminal Tribunal for Rwanda, UN Doc S/RES/955 (8 Nov 1994) Annex [hereinafter Statute of the ICTR]. Art 1 Statute of the ICTY and Art 1 Statute of the ICTR. Prosecutor v Tadic, 1995 Case No IT-94-1, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 Oct 1995 [hereinafter Tadic Appeal Chamber Decision on Jurisdiction] para 94. Ibid, para 94. The Appeals Chamber also stated that the violation of the rule must entail individual criminal responsibility under customary or conventional law. For further discussion of the criteria of "seriousness" in the context of the ICTY and ICTR see, V Morris & M Scharf, International Criminal Tribunal for Rwanda, voll (1998) [hereinafter Morris & Scharf, ICTR] 154-157. See for example, Prosecutor v Akayesu, Case No ICTR-96-4, Judgmenc (2 Sep 1998) [hereinafter Akayesu Judgment] para 616; and Prosecutor v Musema, Case No ICTR-96-13-T, Judgment (27 Jan 2000) [hereinafter Musema Judgment] paras 286-288.

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A gendered view of what is "serious" Perceptions of what is "serious" are influenced by many factors, including gender. For example, the influence of gender in the designation of international crimes is apparent in the grave breach provisions of IHL. These norms represent the most fundamental principles of the regime.39 I n this way the grave breach system of IHL is analogous to the system of jus cogens that purports to protect the most fundamental interests of international society.^0 Chinkin and Charlesworth have exposed the underlying gender assumptions of the regime of jus cogens.1^ Women receive equal protection with respect to those harms that are recognised. However, the harms women most need protection against are not reflected in the norms oijus cogens.^ Consequently: jus cogens norms reflect a male perspective of what is fundamental to international society that may not be shared by women or supported by women's experience of life. Thus the fundamental aspirations attributed to communities are male and the assumptions of the scheme of world order assumed by the notion ofjus cogens are essentially male. Women are relegated to the periphery of community values. Similar criticisms are warranted by the grave breach provisions of the four 1949 Geneva Conventions, particularly the Fourth Geneva Convention relating to the protection of civilians in international armed conflict. First, many of the harms women suffer as a result of armed conflict are not recognised by IHL at all and therefore are outside the system of grave breaches. For example, increased levels of domestic violence and female genital mutilation associated with armed conflict are not addressed.^ Nor is the failure to provide civilians with adequate access to shelter or protective equipment.45 Furthermore, nowhere is the suffering of refugees and displaced persons, who are forced to flee their homes to

39

40 41 42 43 44 45

States have a duty to enact penal sanctions for grave breach violations, and are further obliged to "search for persons alleged to have committed, or to have ordered to be committed, such grave breaches" and bring them to trial, or extradite them for trial. For violations other than grave breaches, States are under the less onerous duty to "take measures necessary for the suppression" of such acts. See the further discussion of grave breaches supra Chapter 3. For the concept of jus cogens, see Art 53 Vienna Convention on the Law of Treaties 1969 (1155 UNTS331). See H Charlesworth & C Chinkin, "The Gender of Jus Cogens", (1993) 15 HRQ_ 63. Ibid, at 70. Ibid, at 67. See the further discussion on violence against women supra Chapter 2. See the further discussion on women as collateral damage supra Chapter 2.

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escape armed conflict, reflected in the grave breach provisions. 46 The failure of international law to recognise many of the experiences of women during armed conflict leaves them without any prospects of redress. Secondly, the "special" provisions for women, such as those prohibiting the death penalty being carried out upon pregnant women and those mandating separate quarters and sanitary conveniences for women internees, detainees, and prisoners of war, are not specifically designated as grave breaches of the Geneva Conventions. 4 ' 7 The matters regulated by these provisions are far from trivial. For example, failure to comply with the requirements for separate quarters exposes women to increased risk of sexual violence. Furthermore, no express reference is made to the crimes of sexual violence that are an integral aspect of women's experience of armed conflict. The absence of any express reference to those acts most likely to affect women as a result of armed conflict reflects the historical failure to incorporate the perspective of women into the assessment of the types of harms considered to be the most serious. By way of contrast, several of the specific acts mentioned in the grave breach provisions typically reflect the way that certain groups of men experience armed conflict. For example, the prohibition on compelling a protected person to serve in the forces of a hostile power, and guarantees concerning the right to a fair trial, are matters more typically affecting men than women. The designation of the destruction and appropriation of property as a grave breach is another provision that reflects the priorities of men, as throughout the world men are more likely than women to own property. 48 An Emerging Gender Perspective on International Crimes In more recent times, the types of acts designated as international crimes have begun to reflect more accurately the experiences of women arising from armed conflict. For example, the prohibition on excessive collateral civilian casualties is now a conventional rule of IHL, and, moreover, recognised as a grave breach. 49 This development has particular significance for the large percentage of women

46 47 48

49

See the further discussion on refugees supra Chapter 2. See further Chinkin, supra note 21, at 218-219. See the further discussion on "special" provisions for women supra Chapter 3. See the source cited supra Chapter 2 note 39 regarding worldwide ownership of property; and R Ridd & H Callaway, Caught up in Conflict: Women's Responses to Political Strife (1986) 36 (discussing property loss in the context of the conflict between Turkey and Cyprus). See also the discussion on property loss in the context of the UNCC infra note 396 and accompanying text. See supra Chapter 3 at note 90 flfand 117ff and accompanying text.

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who make up the civilian population in armed conflicts. However, to date, despite violations, these rules remain largely un-enforced.5° The most extensive development has been increased recognition of sexual violence as an international crime. Attention was drawn to the status of rape and other forms of sexual violence as war crimes, as a result of events during the armed conflict in the former Yugoslavia.?1 Rape had been prohibited by military codes for centuries, and by the Fourth Geneva Convention and the Additional Protocols.52 However, there was initially some doubt as to whether rape was an international crime, given that it was not expressly designated as a grave breach.

50

Widespread (and in some cases arguably disproportionate) civilian casualties were a feature of both the Persian Gulf conflict (1990-91) and the 1999 NATO action in Kosovo. See the sources cited in J Gardam, "Proportionality and Force in International Law", (1993) 87 AJIL 391 at 393 at note 13 (in relation to the Gulf conflict); and see Draft Special Report by Special Rapporteur V Kroning, Kosova andInternational Humanitarian Law (1999) paras 12-21; RFalk, "Kosovo, World Order, and the Future of International Law", (1999) 93 AJIL 847 at 851-852 (discussing the level of civilian damage caused by the NATO operation in Kosovo); and Human Rights Watch, Civilian Deaths in the NATO Air Campaign (2000) (describing the high level of civilian casualties). Despite some pressure, particularly in the case of the NATO action in Kosovo, no action has been taken in response to these acts. See however, the discussion regarding the ICTY and crimes against the civilian population during the conflict in Bosnia, infra at note 225 ff and accompanying text.

51

See for example, Copelon, supra note 23; D Aydelott, "Mass Rape During War: Prosecuting Bosnian Rapists Under International Law", (1993) 7 Emory Int'l LR 585; C Chinkin, "Rape and Sexual Abuse ofWomen in International Law", (1994) 5 EJIL 326; C Cleiren & MTijssen, "Rape and other Forms of Sexual Assault in Armed Conflict in the Former Yugoslavia: Legal, Procedural and Evidentiary Issues", (1994) 5(2/3) Crim LF 47\;J Green et al., "Affecting the Rules for the Prosecution of Rape and other Gender-Based Violence before the International Criminal Tribunal for the Former Yugoslavia: A Feminist Proposal and Critique", (1994) 5 Hast Women's Z/(1994) 171; Hastings Law School Symposium, "Rape as a Weapon of War in the Former Yugoslavia", (1994) 5 Hast Women's LJ 69; S Healey, "Prosecuting Rape under the Statute of the War Crimes Tribunal for the Former Yugoslavia", (1995) 21(2) Brook J Int'l L 327; A Jones, "Gender and Ethnic Conflict in exYugoslavia", (1994) 17 Ethnic and Racial Studies (1994) 115; J Kalajdzic, "Rape, Representation and Rights: Permeating International Law with the Voices ofWomen" (1996) 21 Queen's LJ 457; CKrass, "Bringing the Perpetrators of Rape in the Balkans to Justice: Time for an International Criminal Court" (1994) 22 Denv J Int'l L & Pol 317; T Meron, "Rape as a Crime under International Law" (1993) 87 AJIL 424; C Niarchos, "Women, War and Rape: Challenges Facing the International Tribunal for the Former Yugoslavia", (1995) 17(4) HRQ 649; D Thomas & R Ralph, "Rape in War: Challenging the Tradition of Impunity", (1994) SAIS Review 81; A Wing & S Merchan, "Rape, Ethnicity, and Culture: Spirit Injury from Bosnia to Black America" (1995) 25(1) ColHRLR 1. For the details of these provisions, see supra Chapter 3 at notes 20-27, 60-62 and accompanying text; and see also the discussion on the evolution of the prohibition of rape and serious sexual violence in customary international law in Prosecutor v Furundzija, Case No IT-95-17/1, Judgment (10 Dec 1998) [hereinafter Furundzija Judgment para 168.

52

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187

Historically, rape had been characterised as an attack against the honour and dignity of women, and not as a grave act of violence. 53 Events in the former Yugoslavia forced a reconsideration of the seriousness of sexual violence, and the extent to which it was implicitly encompassed within "torture", "genocide", "crimes against humanity", and grave breach provisions, such as "inhuman treatment", and "wilfully causing great suffering or serious injury to body or health". There are many varied aspects to this new focus on sexual violence. The discussion that follows focuses on sexual violence as constituting torture, genocide, crimes against humanity and war crimes.^ While cases of sexual violence involving men have been considered at the international level, we focus on the developments relating specifically to sexual violence against women. (i) Sexual violence as torture Throughout history, sexual violence has been frequently used as a means of torturing women. The severe physical and mental pain inflicted by the act itself is compounded by the resulting social and cultural implications for women, as well as the risk of contracting sexually transmitted diseases, damage to the reproductive system, or ensuing pregnancy. Sexual violence often objectively satisfies the

53 54

See the discussion on rape as a crime against honour, supra Chapter 4 at note 73 ff and accompanying text. The discussion in this Chapter does not purport to be an exhaustive analysis of recent developments in the context of wartime sexual violence as, for example, the use of evidence of sexual violence as evidence of the specific intent required for genocide (see Prosecutor v Karadzic and Another, Case No IT-95-18, Review of the Indictment Pursuant to Rule 61 (11 July 1996) [hereinafter Karadzic Rule 61); superior responsibility for sexual violence, (see for example, P Viseur Seller & K Okuizumi, "Intentional Prosecution of Sexual Assaults", (1997) 7 Trans L & Cont Prob 45 at 62-68; V Oosterveld, Command Responsibility for Crimes of Sexual Violence, unpublished LL.M. thesis on file with the authors (1998); and Celebici Judgment, supra note 31); and evolving definitions of rape and other acts of sexual violence (see Akayesu Judgment, supra note 38, at paras 597598); Celibici Judgment, supra note 31, at paras 478-479; and Musema Judgment, supra note 38; paras 220-228; cf Furundzija Judgment, supra note 52, para 185. See also the definition of "forced pregnancy" in Art 7(2) (f) Statute of the ICC, as discussed in C Steains, "Gender Issues", in R Lee ed, The International Criminal Court: The Making of the Rome Statute-Issues, Negotiations, Results (1999).

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legal definition of torture. Historically, however, it has neither been perceived as a violent act, nor one that is used strategically or officially sanctioned. 5 5 The re-conceptualisation of sexual violence as torture began within the context of international and regional human rights instruments prohibiting torture, 56 and is now also reflected in the interpretation of international criminal law norms that refer to torture.57 The Prosecutor has treated sexual violence as torture under relevant articles of the Statute of the ICTY, including Article 2 (grave breaches of the four 1949 Geneva Conventions),5 8 Article 3 (violations of the laws and customs of war),^9 and Article 5 (crimes against humanity).'' 0 Furthermore, the status of rape as

55

Torture is not defined in conventional IHL. The Trial Chamber in the Furundzija Judgment, supra note 52, at 197, drawing upon Art 1(1) of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment, 1984, GA Res 39/46, UN Doc A/39/51 (1984) ((1984) 23 ILM 1027) considered that torture for the purposes of international criminal law relating to armed conflicts (para 162): "(i) consists of the infliction, by act or omission, of severe pain or suffering, whether physical or mental; in addition (ii) this act or omission must be intentional; (iii) it must aim at obtaining information or a confession, or at punishing, intimidating, humiliating or coercing the victim or a third person, or at discrimination, on any ground, against the victim or a third person; (iv) it must be linked to an armed conflict; (v) at least one of the persons involved in the torture process must be a public official or must at any rate act in a non-private capacity, e.g. as a de facto organ of a State or any other authority-wielding entity." See generally paras 159-164. The Statute of the ICC, dispensing with the requirement of "official" involvement, contains the following definition of torture: "the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising from, inherent in or incidental to, lawful sanctions."

56

See for example, Aydin v Turkey, European Court of Human Rights, Sept 1997, (finding that "the accumulation of acts of physical and mental violence inflicted on the applicant and especially the cruel act of rape to which she was subjected amounted to torture in breach of die European Convention for the Protection of Human Rights and Fundamental Freedoms"); and Fernando and Raquel Mejia and another v Peru, Inter-American Commission on Human Rights 1996 (finding that the rape of Raquel Mejia amounted to torture in breach of the American Convention on Human Rights). See also, D Blatt, "Recognising Rape as Torture", (1992) XIX NYUR Law & Social Change 821; and E Aswad, "Torture by Means of Rape", (1996) 84 Geo LJ 1913. For a discussion of the crime of torture in IHL, see Furundzija Judgment, supra note 52, paras 134-142. See for example, Prosecutor v Delalic and Others, Indictment Case No IT-96-21, [hereinafter CelebiciIndictment}; and Prosecutor v Nikolic, First Amended Indictment, Case No IT-94-2 [hereinafter Nikolic Amended indictment]. See for example, Celebici Indictment, ibid; Prosecutor v Furundzija, Indictment, as amended 2 June 1998, Case No IT-95-17/1 [hereinafter Furundzija Indictment; Prosecutor v Jankovic and Others, Indictment Case No IT-96-23, as amended 7 Oct 1999, [hereinafter Foca Indictment; Prosecutor v Kvocka and Others, Indictment, as amended 31 May 1999, Case No IT-98-30, [hereinafter Omarska and Keraterm Camps Indictment]. See for example, Foca Indictment, ibid; Prosecutor v Kunarac, Indictment, Case No IT-96-23 [hereinafter Kunarac Indictment]; Omarska and Keraterm Camps Indictment, ibid; and Nikolic Amended Indictment, supra note 58.

57 58

59

60

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torture was considered in detail in the Celebici judgment delivered by the ICTY in November 1998. One of the four accused was charged with the rape of two women detained in the Celebici prison camp in the Konjic municipality in central Bosnia and Herzegovina during 1992. The Prosecutor alleged that, in the circumstances, these rapes were torture, constituting a grave breach of the four 1949 Geneva Conventions, and a violation of the laws and customs of war.61 In considering these arguments, the Trial Chamber found that there was no question that acts of rape could constitute torture under international law.62 In their view, "rape causes severe pain and suffering, both physical and psychological". Moreover, "it is difficult to envisage circumstances in which rape by, or at the instigation of a public official, or with the consent or acquiescence of an official, could be considered as occurring for a purpose that does not, in some way, involve punishment, coercion, discrimination or intimidation. In the view of this Trial Chamber this is inherent in situations of armed conflict."63 One of the required elements of the crime of torture is that the act must be inflicted for a designated "purpose". Historically, the identified purpose was to obtain information from the victim, but additional motives have subsequently been accepted as sufficient.6^ In the Celebicijudgment, the Trial Chamber accepted that the required purpose can include: "obtaining information or a confession from the victim, or a third person, punishing the victim for an act he or she or a third person has committed or is suspected of having committed, intimidating or coercing the victim or a third person, or for any reason based on discrimination of any kind."65 The Trial Chamber referred to the work of the Committee on the Elimination of Discrimination against Women (CEDAW) that violence directed against a woman, because she is a woman, is a form of discrimination.61' The accused was found guilty of torture as a grave breach, and as a violation of the laws and customs of war, for raping the two women.6? The Trial Chamber commented that the rapes were inflicted for the purposes specified in the definition of torture, including to obtain information, to punish, to coerce, and to intimidate.68 Furthermore, the violence was inflicted on each of the women

61 62 63 64 65 66 67 68

See Celebici Indictment, supra note 58. See Celebici Judgment, supra note 31, at paras 494-497. Ibid, para 495. See also paras 942 and 964 (describing the severe mental and physical pain suffered by the victims of rape in that case). See the discussion of the definition of torture adopted by the ICTY in the Furundzija Judgment, supra note 52, and the Celebici Judgment, supra note 31. Celebici Judgment, ibid, at para 494. Ibid, at para 493. Ibid, at paras 943 and 965. Ibid, at paras 941 and 963.

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because they were women. This, the Trial Chamber found, is a form of discrimination that constitutes a prohibited purpose for the offence of torture.® Sexual violence has been recognised as torture in other ICTY cases/0 and the ICTR has indicated its agreement on this point.71 (ii) Sexual violence as genocide

Men and women are often targeted in different ways during genocide. Acts directed at women, such as sexual violence, can be used to further a strategy of genocide. However, the mis-characterisation of such acts as incidental, non-violent crimes, has for many years, impeded a re-conceptualisation of genocide that accurately reflects the experience of women. The aim of the Genocide Convention is to prevent and punish those persons who act upon their hatred of a particular group by physically harming the group members, with a view to ultimately eradicating them. The Court in the Eichmann case emphasised the "all-embracing, total form" of the crime of genocide, recognising that the destruction of human groups is a complicated operation, consisting of many steps. In the case of the Holocaust, the "extermination campaign was a single comprehensive act, not to be split up into the acts or operations performed by sundry people at sundry times and in sundry places. One team of men carried it out in concert the whole time and everywhere."72 When sexual violence occurs in the context of a genocidal attack, it is a manifestation of the same hatred towards members of the group that motivates other physically harmful acts. The genocidal intention of the perpetrators is present throughout, and it is artificial to separate acts of sexual violence from the other genocidal acts. To do so, distorts the nature of the crime of genocide, and the nature of sexual violence. Sexual violence against women was neither referred to during the drafting of the Genocide Convention, nor in the Convention itself. The exclusion of gender considerations may be partly explained by the perception that the Holocaust was "gender neutral", with both men and women being equally targeted.7^ However,

69 70 71

72 73

Ibid. See for example, Furundzija Judgment, supra note 52, at para 267. See for example, Akayesu Judgment, supra note 38, at paras 598 and 687. See also Prosecutor v Nyiramasuhuko and Another, Indictment Case No ICTR-97-21 [hereafter Nyiramasuhuko Indictment^, (charging sexual violence (rape and forced nudity) as a violation of Common Art 3 by way of torture). Attorney General of the Government of Israel v Eichmann, (1961) 36 ILR 5 at 233-234. For many years there was great resistance to examining the Holocaust from a gender perspective. This resistance stems from many concerns, including fears that the horror of the event would somehow be trivialised. Consequently, women's distinctive experiences remained largely hidden and unacknowledged for many years. See D Ofer & L Weitzman eds, Women in the Holocaust (1998) 12-18, and see also C Rittner & J Roth, Women and the Holocaust: Different Voices (1993).

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many of the acts specified in Article II of the Convention can be interpreted to cover sexual violence. Most of the acts are no more than general categories, with little indication given as to their precise content, although clearly they must be capable of bringing about the destruction of a specified group. 7 ^ Rape and other sexual abuse can constitute "serious bodily or mental harm" in accordance with Article II (b) of the Genocide Convention. 75 The UNCC has expressly recognised that "serious personal injury" includes physical or mental injury arising from sexual assault.7^ The classification of sexual violence as torture, which requires the infliction of severe physical or mental pain or suffering, further supports this argument. 77 Sexual violence can result in the kind of bodily harm that leads to the physical destruction of women forming part of the targeted group. 78 The words "mental harm" were included in the Genocide Convention so as to cover genocide committed through the use of narcotics.7^ At the time of its adoption, there was some controversy as to whether the phrase "mental harm" was intended to include non-physical impairment of the mental faculties, or whether only physical impairment was covered. A literal interpretation of the use of the word "or", rather than "including", suggests the mental harm was an extension of the term "physical harm", and the view that non-physical mental impairment is covered, has subsequently received support. 80 Mental trauma caused by sexual violence can fall within this category.81

74

75

76 77 78

79

80

81

See Webb, "Genocide Treaty-Ethnic Cleansing: Substantive and Procedural Hurdles in Application of the Genocide Convention to the Alleged Crimes in the Former Yugoslavia", (1993) 23 Georgia JInt'l 6- Comp L 377 at 392. See Wing & Merchan, supra note 51; and Webb, ibid, at 402-403, (for a brief analysis of the extent to which acts of sexual violence committed during the conflict in the former Yugoslavia can fall within Art II(b) and (c) of the Genocide Convention). See the further discussion of the UNCC and the treatment of sexual violence, infra notes 375 ff and accompanying text. See the discussion on torture and sexual violence supra notes 55 ff and accompanying text. See for example, Prosecutors Tadic, Opinion and Judgment, Case No IT-94-1 (7 May 1997) [hereinafter Tadic Judgment] paras 154 and 165 (recounting the devastating physical and mental harm of sexual violence on women in the Trnopolje camp); and Aswad, supra note 56, at 1931-1942 (describing the severe pain and suffering inflicted by rape). Proceedings of the Sixth Committee, UN GAOR 6th Comm, 3rd Sess, 81st meeting (1948) [hereinafter Genocide Convention Proceedings] 175 (detailing the use of narcotics by the Japanese against the Chinese population.) See for example, B Bryant, "Part I: Substantive Scope of the Convention", in "The United States and the 1948 Genocide Convention", (1975) 16 Harv Int'l LJ 683 at 686, 693-96. See also C Joyner, "The United States and the Genocide Convention", (1987) 27 Indian J Int'l Law 411 at 445. More recently, commentators have suggested that the harm must be "more than minor or temporary". See for example Report of the Preparatory Committees Working Group on the Definition of Crimes, UN Doc A/AC.249/1007/L.5 (12 Mar 1997) 3 footnote 4. For sources in relation to the psychological consequences of sexual violence, see infra note 100 and accompanying text.

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Sexual violence can also fall within Article II (c) of the Genocide Convention, which refers to "deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part". Article II(c) is concerned with acts intended to produce "slow death", such as "placing a group of people on a subsistence diet, reducing required medical services below a minimum, withholding sufficient living accommodations etc," 82 as well as hard labour.8^ The stories of women who survived the Nazi concentration camps confirm that a broad range of conditions was imposed as an integral part of the plan for their destruction. For example, Lewinska writes:8^ "... [w]hat had struck me as disorder was thoroughly planned. What had seemed ignorance was the result of great subtlety Nothing was accidental, all was consciously accomplished, all to a specific end." Sexual violence, in common with such acts as forced labour, can be part of the oppressive conditions imposed on a group, which in combination with other acts, may lead to the destruction of its members. The experience of the "comfort women" illustrates the likelihood that rape and other forms of sexual violence will result in physical destruction. 85 Finally, where sexual violence is used to prevent births within the group, for example, by destroying the sexual and reproductive organs of women, and thereby their capacity to bear children of their own group, it will be covered by Article II(d) of the Genocide Convention. Following the conflicts in the former Yugoslavia and Rwanda, for the first time consideration was given to the relationship between sexual violence and genocide, with significant support for the view that sexual violence could constitute genocide

82 83 84 85

See, Attorney General of the Government of Israel v Eichmann, supra note 72, at 236. See also Musema Judgment, supra note 38. See Attorney General of the Government of Israel v Eichmann, supra note 72, at 236. See Rittner & Roth, supra note 73, at 90. See for example, D Boling, "Mass Rape, Enforced Prostitution, and the Japanese Imperial Army: Japan Eschews International Legal Responsibility", (1995) 32 Colum ]TL 467 at 542 (recounting that "[historians estimate that less than 30% of the comfort women survived the war", and citing I Lourdes Sajor, Women in Armed Conflict Situations, MAV/1993/WP.1 (21 Sep 1993) 3).

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if the other elements of the crime were present.8^ However, contrary views were expressed.8'7 Indictments have been issued by the Prosecutor of the ICTY 88 and the ICTR 8 ^ treating sexual violence as genocide. The first jurisprudence on this issue arose from the Akayesu case heard by the ICTR.9° Akayesu was bourgmestre of the Taba commune during the 1994 conflict in Rwanda. The Prosecutor did not allege that Akayesu personally committed any acts of sexual violence. Rather, it was argued that he knew the sexual violence was occurring, and that he facilitated and encouraged it by the following means: by allowing it to take place on or near the bureau's communal premises; by his presence; and by failing to prevent it. In the circumstances, the Prosecutor argued that the sexual violence constituted, inter alia, "serious bodily or mental harm to members of the group", and was thereby genocide, as set forth in the Statute of the ICTR.9' The Trial Chamber of the ICTR accepted that Akayesu knew the sexual violence was occurring and that he took no measures to prevent or punish it. There was evidence that he had "ordered, instigated and otherwise aided and abetted sexual violence".92 The Trial Chamber found that "[s]exual violence was an integral part of the process of destruction, specifically targeting Tutsi women and

86

In addition to the sources cited supra notes 74 ff see GA Res 51/115, (reaffirming"... that rape in the conduct of armed conflict constitutes a war crime and that under certain circumstances it constitutes a crime against humanity and an act of genocide as defined in the Genocide Convention); Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 935 (1994), UN SCOR, Annex 136-46, UN Doc S/1994/1405 (1994) (relating to the 1994 conflict in Rwanda, and stating that in some instances, sexual violence can constitute genocide); Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780 (1992), UN Doc S/1994/674/Add.2 (28 Dec 1994) (relating to the former Yugoslavia, and stating that the Genocide Convention covers rape and sexual assault); J Paust, "Correspondence", (1994) 88 AJIL 88; C MacKinnon, "Rape, Genocide, and Women's Human Rights", in A Stiglmayer ed, Mass Rape: The War against Women in Bosnia-Herzegovina (1994) 183 at 183; B Isenberg, "Genocide, Rape, and Crimes against Humanity", (1997) 60 Albany LR 1051; and R Copelon, "Surfacing Gender: Re-Engraving Crimes against Women in Humanitarian Law", (1994) 5(2) Hast LJ 243.

87 88

This opinion has been expressed to the authors informally in various fora. See for example, Prosecutor v Karadzic and Another, Indictment, Case No IT-95-5 [hereafter Karadzic Indictment (under Art 4(b), causing serious bodily or mental harm to members of the group and Art 4(c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part). See for example, Prosecutors Akayesu, Indictment as amended 17 June 1997, Case No ICTR-964-1 [hereinafter Akayesu Indictment}; and Prosecutor v Musema, Indictment as amended 6 May 1999, Case No ICTR-96-13-I [hereinafter Musema Indictment}. Akayesu Judgment, supra note 38. Ibid. Ibid, at para 452. See also para 706.

89

90 91 92

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specifically contributing to their destruction and to the destruction of the Tutsi group as a whole".9^ Moreover, "[s]exual violence was a step in the process of destruction of the Tutsi group — destruction of the spirit, of the will to live, and of life itself."** The Trial Chamber was persuaded that the sexual violence was accompanied by the specific intent required for the crime of genocide. This intent was evident in particular from the fact that many rapes were perpetrated near mass graves; that statements were made that the women being taken away would be collected later for execution; and after some of the rapes, Akayesu was heard to state that "tomorrow they [the women] will be killed", and they were actually killed.95 The Trial Chamber considered the meaning of "serious bodily and mental harm", as contained in the Genocide Convention and reflected in the Statute of the ICTR, and emphasised that such harm need not be permanent and irremediable.9^ Drawing on the Eichmann case, the Trial Chamber determined that serious bodily and mental harm includes: "acts of torture, be they bodily or mental, inhumane or degrading treatment, [and] persecution.'9'7 The Trial Chamber expressly stated that sexual violence falls within the scope of "serious bodily or mental harm". 98 Akayesu was found to have abetted the infliction of serious bodily and mental harm through "acts of sexual violence, mutilations and rape". 99 The Trial Chamber emphasised that rape and sexual violence ... constitute genocide in the same way as any other act as long as they were committed with the specific intent to destroy, in whole or in part, a particular group, targeted as such. Indeed, rape and sexual violence certainly constitute infliction of serious bodily and mental harm on victims and are even ... one of the worst ways of inflict [sic] harm on the victim as he or she suffers both bodily and mental harm.100 The Trial Chamber in the Akayesu case also considered the meaning of the phrases "deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part", 101 and "imposing measures

Ibid, at para 731. Ibid, at para 732. Ibid, at para 733. 96 Ibid, at 502. 97 Ibid, at para 504. 98 Ibid, at para 275. 99 Ibid, at paras 706-707. 100 Ibid, at para 731. 101 Ibid, at paras 502-506.

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intended to prevent births within the group". 102 In the context of the latter, particular attention was given to various acts of sexual violence, such as sexual mutilation, sterilization, forced birth control, and deliberate impregnation. Furthermore, rape was found to be a measure that, due to the mental harm inflicted, may be imposed to prevent births within a group. The classification of sexual violence as genocide was confirmed in the subsequent judgment issued by the ICTR against Alfred Musema, who was also found guilty of, inter alia, genocide constituted by acts of sexual violence. 103 Musema was found to be the perpetrator of rape, and was also held responsible for abetting others to rape, and encouraging them to rape by his example.10^ In its judgment, the Trial Chamber specifically stated that "'serious harm' need not entail permanent or irremediable harm". 105 As in the case of Akayesu, the judgment against Musema emphasised the connection between sexual violence and statements evincing an intention to harm the Tutsi population. For example, just prior to the rape of one woman, Musema was heard to say "[t]he pride of the Tutsi is going to end today". 10(i Overall, the Trial Chamber concluded that acts of serious bodily and mental harm, including rape and other forms of sexual violence were often accompanied by humiliating utterances, which clearly indicated that the intention underlying each specific act was to destroy the Tutsi group as a whole ... [i]n this context, the acts of rape and sexual violence were an integral part of the plan conceived to destroy the Tutsi group. Such acts targeted Tutsi women, in particular, and specifically contributed to their destruction and therefore that of the Tutsi group as such.10" There has been further judicial recognition that rape can constitute genocide. 108 In the Karadzic and Mladic rule 61 hearings, the ICTY heard evidence about the physical and psychological harm inflicted as a result of sexual violence against

102 103 104 105 106 107 108

Ibid, at paras 507-508. See also Musema Judgment, supra note 38, para 158. Musema Judgment, ibid. Ibid, at para 908. Ibid, at para 156. Ibid, at para 907. Ibid, at para 933. See for example, Furundzija Judgment, supra note 52, at para 172.

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women in Bosnia, and the proximity of the sexual violence and the killings. 10 ' Developments in the context of the ICC provide further support for the classification of rape and other acts of sexual violence as genocide in cases where the other criteria for the crime are met. 110 Calls have previously been made for gender to be added to the target groups included in the crime of genocide. 111 Traditionally the crime has only recognised "national, ethnical, racial or religious groups". 112 When women are specifically targeted, they will frequently also fall within one of these groups, and so will be covered as constituting "part" of an enumerated group within the meaning of Article II of the Genocide Convention. 1 ^ However, in those cases where women are targeted for destruction solely on the basis of their gender, judgments of the ICTR provide support for the proposition that a flexible interpretation of genocide should be adopted. In the Musema judgment, the Trial Court stated that in assessing whether a particular group may be considered protected from the crime of genocide, it [the Chamber] will proceed on a case-by-case basis, taking into account both the relevant evidence proffered and the specific political, social, and cultural context in which the acts allegedly took place.^^

109 In cases where an arrest warrant has been issued but not executed, Rule 61 allows the Prosecutor to submit the indictment to a Trial Chamber, together with supporting evidence for the indictment. This procedure takes place in the absence of the accused. The Trial Chamber then determines whether there are reasonable grounds for believing the accused has committed the acts alleged. If so, an international arrest warrant is issued, and the Security Council can be informed. See Rule 61 (D) and (E) Rules of Procedure and Evidence of the International Criminal Tribunal for the Former Yugoslavia, adopted 11 Feb 1994, as amended 5 May 1994; as further amended 4 Oct 1994; as amended 30 Jan 1995; as amended 3 May 1995; as further amended 15 June 1995; as amended 6 Oct 1995; as further amended 18 Jan 1996; as amended 23 Apr 1996; as amended 25 June and 5 July 1996; as amended 3 Dec 1996; as further amended 25 July 1997; as revised 20 Oct 1997 and 12 Nov 1997; as amended 9 & 10 July 1998; as amended 4 Dec 1998; as amended 4 Dec 1998; as amended 23 Feb 1999; as amended 2 July 1999; as amended 17 Nov 1999, available at UN [hereinafter Rules of Procedure and Evidence of the ICTY]; and Rules of Procedure and Evidence of the ICTR, adopted on 29 June 1995; as amended on 12 Jan 1996; 15 May 1996; 4 July 1996; 5 June 1997 and 8 June 1998, available at ICTR [hereinafter Rules of Procedure and Evidence of the ICTR]. 110 See the discussion of this point supra Chapter 3, notes 174 ff and accompanying text. 111 See for example, K Askin, War Crimes against Women (1997) 342-343 and see generally, Morris & Scharf, ICTR, supra note 38, at 174-175. 112 Art II Genocide Convention. 113 The language "in whole or in part" was suggested by Norway in order to make it clear that it is not necessary to kill all the members of a group in order to commit genocide. See Genocide Convention Proceedings, supra note 79, at 93. See also L LeBlanc, "The Intent to Destroy Groups in the Genocide Convention: The Proposed US Understanding", (1984) AJIL 369 at 372. 114 Musema Judgment, supra note 38, at para 163.

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Furthermore, in the Akayesu case, the Trial Chamber noted that the drafters of the Genocide Convention intended to include only "'stable' groups, constituted in a permanent fashion and membership of which is determined by birth, with the exclusion of more 'mobile' groups which one joins through individual voluntary commitment, such as political and economic groups".1^ J n considering whether additional groups meeting this criterion might also be covered, the Chamber stated that "the intention of ... the Genocide Convention, ... was patently to ensure the protection of any stable and permanent group."11'' This provides considerable support for the proposition that targeting women, exclusively on the basis of their gender, falls within the existing definition of genocide. (iii) Sexual violence as a crime against humanity

There have been several developments in the context of the recognition of sexual violence as a crime against humanity. First, torture is one of the acts constituting a crime against humanity. U7 The recent recognition of sexual violence as torture provides scope for these acts to be prosecuted also as crimes against humanity in appropriate cases.118 The ICTY has issued indictments on this basis. 119 Secondly, rape has been expressly recognised as one of the acts constituting a crime against humanity. Until the adoption of the Statute of the ICTY, the only express reference to rape in the context of crimes against humanity was in Control Council Law No 10.120 However, since the first concrete formulation of crimes against humanity in the Nuremberg Charter, rape was always included by implication. The rationale for crimes against humanity, as formulated in the Nuremberg Charter, was to ensure that the types of acts amounting to war crimes could also be punished when the nationality of the victim and the perpetrator are the same.121 Given that rape had been prohibited by the laws of war for centuries, it

115 Akayesu Judgement, supra note 38, at para 511116 Ibid, at para 516. 117 See for example, Art 5(0 Statute of the ICTY, Art 3(0 Statute of the ICTR, and Art 7(0 Statute of the ICC. 118 See the discussion of the elements of crimes against humanity supra Chapter 3. 119 See the indictments cited supra note 60. 120 (Allied) Control Council Law No 10, 20 Dec 1945 (Official Gazette of the Control Council for Germany, No 3, 22 [hereinafter Control Council Law No 10). Control Council Law No 10 governed the trials of the German war criminals, other than those dealt with at Nuremberg, in zones of occupation. 121 See M Bassiouni, Crimes against Humanity in International Law (1992) 165-176, 182. See also E Schwelb, "Crimes Against Humanity", (1946) 23 Brit YB Int'lL 178 at 180.

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should, in principle, have been included within the notion of crimes against humanity. Rape was not expressly referred to in the Nuremberg Charter or the Tokyo Charter, but it could have been treated as falling within the general phrase: "other inhumane acts". 122 This phrase covered acts of similar gravity to those expressly listed as crimes against humanity in the Nuremberg Charter, namely murder, extermination, enslavement, and deportation, having regard to the damage done to physical or mental health. 123 Moreover, the phrase "inhumane acts" was intended to cover crimes that were prohibited in most national jurisdictions. 124 Rape falls within this category. 125 Khushalani concludes that "the civilized nations of the world" would have had no difficulty in recognising rape as an "inhumane act" in the Nuremberg Charter. 12 ^ This interpretation is reflected, to some extent, in the prosecutions brought before the Tokyo Tribunal. Although rape was not expressly charged before the Nuremberg Tribunal, it was included in the Tokyo Indictment, and it was expressly categorised as constituting "inhumane treatment". 127 The Tokyo judgment also refers to acts of "torture, murder, rape and other cruelties of the most inhumane and barbarous character".128 This provides further support for the recognition of rape as a crime against humanity, although no definition or discussion of crimes against humanity, as such, appears in the Tokyo judgment. Recognising that rape has always been one of the acts by which a crime against humanity can be committed, the Statutes of the ICTY and the ICTR

122 For a discussion of the meaning of the phrase "other inhumane acts", see generally Bassiouni, ibid, at 282 (who accepts that rape is subsumed within the meaning of "other inhumane acts"). See id, at 35, (pointing out that subsequent express reference to rape in Control Council Law No 10 was strictly unnecessary, given that "rape" was subsumed within the words "or other inhumane acts" in the Nuremberg Charter.) See also Y Khushalani, Dignity and Honour of Women as Basic and Fundamental Human Rights (1982) 17 note 38. 123 See for example, the comments of the International Law Commission on the definition of "other inhumane acts" in Report of the International Law Commission, UN Doc A/51/10 (6 May-26 July 1996) para 17. See also Attorney General of the Government of Israel v Eichmann, supra note 72, at 239 (defining "inhumane acts" as those "causing serious physical and mental harm"). A similar interpretation has subsequently been adopted in the Statute of the ICC where "[o]ther inhuman acts", are defined as those "of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health". See Art 7 Statute of the ICC. 124 See for example, the closing speech of Sir Hartley Shawcross, British Chief Prosecutor at Nuremberg, cited in Schwelb, supra note 121, at 198: "... we have thought it right to deal with matters which the Criminal Law of all countries would normally stigmatise as crimes: murder, extermination, enslavement, persecution on political, racial or economic grounds". 125 See Bassiouni, supra note 121, at 245-246; and Khushalani, supra note 122, at 20. 126 See Khushalani, ibid, at 20. 127 See the further discussion of the Tokyo Indictment infra notes 183 ff and accompanying text. 128 See J Pritchard & S Zaide eds, The Tokyo War Crimes Trial, vol 20 (1981) 49, 592.

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both expressly refer to rape in this context. 129 Accordingly, the Prosecutors of both the ICTY 1 3 0 and the ICTR 1 3 1 have issued indictments treating rape as a crime against humanity. The Trial Chamber of the ICTR upheld this argument in the Akayesu case, finding that, in the context of the Statute of the ICTR, rape is a crime against humanity when committed: "(a) as part of a wide spread or systematic attack; (b) on a civilian population; (c) on certained [sic] catalogued discriminatory grounds, namely: national, ethnic, political, racial, or religious grounds." 132 Akayesu was ultimately found guilty of crimes against humanity for, inter alia, rape, as have other defendants in proceedings before the ICTR. 1 3 3 The Statute of the ICC extends the express recognition of sexual violence in the context of crimes against humanity, to "[r]ape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity."134 A third development in recognising sexual violence as a crime against humanity is in the context of "enslavement", another of the constituent acts of crimes against humanity. 135 During armed conflict, women experience enslavement of many forms, and sexual violence is often a factor. For example, women are frequently detained and raped over prolonged periods; forced into marriages; and forced or sold into prostitution. 13(i The international community, however, has been slow to act upon the connection between sexual violence and enslavement. There are signs of change. In 1996, the Prosecutor of the ICTY issued an indictment in relation to events that took place in Foca, to the Southeast of Sarajevo.137 The Prosecution alleges that when the area was taken over by Serbian forces in April 1992, many Muslim women were detained in houses, apartments, schools and other buildings, and were subjected to repeated rape by soldiers. It is also alleged that women and girls were enslaved in houses operating in a manner

129 See the discussion on crimes against humanity, supra Chapter 3 notes 149 ff and accompanying text. 130 See for example, Prosecutor v Meakic and Others, Indictment as amended 2 June 1998, Case No IT-95-4, [hereinafter Omarska Camp Indictment]; Foca Indictment, supra note 59; Kunarac Indictment, supra note 60; Omarska and Keraterm Camps Indictment, supra note 59; and Nikolic Amended Indictment, supra note 58. 131 Akayesu Indictment, supra note 89; Nyiramasuhuko Indictment, supra note 71; Musema Indictment, supra note 89; and Prosecutor v Semanza, Indictment, Case No ICTR-97-20, [hereinafter Semanza Indictment. 132 See Akayesu Judgment, supra note 38, at para 598. 133 See ibid, at paras 695-696. See also, Musema Judgment, supra note 38, at paras 966-967. 134 Art 7(l)(g) Statute of the ICC. 135 See the discussion of crimes against humanity, supra Chapter 3 notes 149 ffand accompanying text. 136 See the discussion of violence against women, supra Chapter 2 notes 34 ffand accompanying text. 137 Foca Indictment, supra note 59. See also Prosecutor v Kunarac, Indictment, Case No IT-96-23. (The charges against Kunarac were originally included in the Foca Indictment).

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similar to brothels. The Indictment states that, although the women were not guarded or locked inside the house, they were nonetheless held captive as they were surrounded by Serb soldiers and civilians with no hope of escape. In addition to constant sexual violence, the women and girls were forced to perform domestic work, such as cleaning rooms, cooking for the soldiers, and washing the soldiers' uniforms. Overall, the women were treated as the "personal property" of their captors. 138 The Prosecutor has alleged that these acts constitute crimes against humanity by way of enslavement, providing further confirmation that existing crimes are increasingly being interpreted to reflect the perspective of women. The Statute of the ICC extends the emerging gender perspective on enslavement as a crime against humanity, by including within its scope "...trafficking in persons, in particular women and children". 139 One of the consequences of armed conflict for women is increased vulnerability to trafficking for the purpose of prostitution. 140 Fourthly, the Prosecutor of the ICTY has issued indictments treating sexual violence on political, racial, and/or religious grounds, as persecution constituting a crime against humanity. 141 In the Tadic decision, the defendant was found guilty of crimes against humanity by way of persecution, based on, inter alia, rape and other forms of sexual violence. l42 Finally, acts of sexual violence (other than rape), have been charged as crimes against humanity, by means of inhumane acts, by both the ICTY 1 4 3 and the ICTR. 1 4 4 In the Akayesu decision, the ICTR accepted that sexual violence falls within the scope of "other inhumane acts" for the purposes of crimes against humanity. 145 In that case the Trial Chamber found that forced public nudity constituted a crime against humanity by way of other inhumane acts.14(> The

138 Foot Indictment, ibid. 139 For a discussion of this provision, see Steains, supra note 54, at 369-370. 140 See for example, the sources cited on trafficking in women during armed conflict, supra Chapter 3, note 48. 141 See for example, Karadzic Indictment, supra note 88, Foca Indictment, supra note 59; Prosecutor v Talk, Indictment, Case No IT-99-36; Prosecutor v Brdjanin and Another, Indictment as amended 20 Dec 1999, Case No IT-99-36; Prosecutor v Tadic and Another, Indictment as amended 1 Sep 1995, and 14 Dec 1995, Case No IT-94-1 [hereafter Tadic Indictment]; and Omarska and Keraterm Camps Indictment, supra note 59. 142 Tadic Judgment, supra note 78. For further discussion of treatment of sexual violence in the Tadic judgment see K Askin, "Sexual Violence in Decisions and Indictments of the Yugoslav and Rwandan Tribunals: Current Status", (1999) 93 AJIL 97 at 100-105. 143 Omarska and Keraterm Camps Indictment, supra note 59; and Nikolic Amended Indictment, supra note 58. 144 Akayesu Indictment, supra note 89. 145 Akayesu judgment, supra note 38, para 688. 146 Ibid, para 697.

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classification of "serious sexual assault" as a crime against humanity by way of inhumane acts was also confirmed by the ICTY in the Furundzija decision}^ (iv) Sexual violence as a war crime: Grave breaches of the 1949 Geneva Conventions, and violations of the laws and customs of war It has always been possible to interpret the grave breach provisions of the 1949 Geneva Conventions so as to include sexual violence. For example, "inhuman treatment" is a grave breach pursuant to Article 147 of the Fourth Geneva Convention. The Commentary to the Convention draws upon examples of "humane" treatment in order to clarify the meaning of "inhuman" treatment. In particular, Article 27 of the Convention requires that protected persons must be treated humanely at all times and, inter alia, that "[w]omen shall be especially protected against any attack of [sic] their honour, in particular against rape, enforced prostitution, or any form of indecent assault," thus linking sexual violence with inhuman treatment. ^ 8 Consequently, rape and other forms of sexual violence, although not expressly listed as a grave breach under Article 147, can qualify as the grave breach of "inhuman" treatment. *^9 Furthermore, the ICRC for some time has been of the view that rape constitutes a grave breach by way of "wilfully causing great suffering or serious injury to body or health",150 and the US Department of State has formally stated that it supports the categorisation of rape as a grave breach,151 as did the Yugoslav Commission.152 Indictments have been issued by the Prosecutor of the ICTY, in which sexual violence is treated as a grave breach by way of torture and/or inhuman treatment, 15^ and wilfully causing great suffering.15^

147 Furundzija Judgment, supra note 52, para 175148 J Pictet etal. eds, Commentary to IV Geneva Convention Relative to the protection of Civilian Persons in Time of War (1958) 598. 149 See also the discussion supra note 122 ff and accompanying text, on the categorisation of sexual violence as an inhumane act in the context of crimes against humanity. 150 ICRC, Aide-Memoire (3 Dec 1992), cited in Meron, supra note 51, at 426. In addition, the 1993 Final Declaration of the International Conference for the Protection of War Victims, reiterates that sexual violence, notably that directed against women and children, constitutes grave breaches of IHL. 151 Letter from Robert A Bradtke, Acting Assistant Secretary for Legislative Affairs, to Senator Aden Specter (27 Jan 1993) cited in Meron, ibid, at 427 (referring to wilful killing, torture or inhuman treatment and willfully causing great suffering or serious injury to body or health). 152 Annex II, Rape and Sexual Assault: A Legal Study, UN Doc S/1994/674/Add.2 vol I (28 Dec 1994) ptll. 153 See the sources, cited supra note 58 regarding charges of sexual violence as a grave breach by way of torture. 154 Omarska Camp Indictment, supra note 130; Tadic Indictment, supra note 141; Foca Indictment, supra note 59; and Nikolic Amended Indictment, supra note 58.

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The ICTY also has jurisdiction over violations of the laws and customs of war. Article 3 of the Statute of the ICTY gives a non-exhaustive list of such violations, which make no reference to sexual violence. On the basis that acts other than those expressly mentioned may, nonetheless, be covered, the ICTY has issued indictments in which sexual violence is treated as a violation of the laws and customs of war applicable to international and internal armed conflict. ^5 The extent to which sexual violence can be prosecuted as a violation of the laws and customs of war under Article 3 of the ICTY Statute was considered in the case of Furundzija}^ The Trial Chamber, drawing on the reasoning of the Appeals Chamber in the Tadic Jurisdiction case, ^7 confirmed that Article 3 is an "umbrella" rule that covers "any serious violation of a rule of customary international humanitarian law entailing, under international customary or conventional law, the individual criminal responsibility of the person breaching the rule." Furthermore, "[i]t is immaterial whether the breach occurs within the context of an international or internal armed conflict."158 The Trial Chamber found "rape and other serious sexual assaults" to be acts falling within the definition.1^ Furundzija was found guilty of, inter alia, violations of the laws and customs of war by outrages on personal dignity, including rape.1^0 The ICTR has jurisdiction over violations of common Article 3 to the four 1949 Geneva Conventions, and of Protocol II, as set out in Article 4 of the Statute of the ICTR. "Outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault ..."are expressly mentioned.11'1 Accordingly, the Prosecutor of the ICTR

155 See for example, Celebici Indictment, supra note 58 (torture, and cruel treatment); Omdrska Camp Indictment, ibid (cruel treatment); Foca Indictment, ibid (torture; rape, and outrages upon personal dignity); Kunarac Indictment, supra note 60 (torture, rape, outrages on personal dignity); Tadic Indictment, ibid (cruel treatment); Furundzija Indictment, supra note 59 (outrages upon personal dignity); Karadzic Indictment, supra note 88 (outrages on personal dignity); Omarska andKeraterm Camps Indictment, supra note 59 (torture and outrages upon personal dignity); Nikolic Amended Indictment, supra note 58 (outrages upon personal dignity). 156 See Prosecutor v Furundzija, Case No IT-95-17/1, Decision of the Trial Chamber on the Preliminary Motion of the Defence (29 May 1998) [hereinafter Furundzija Decision of the Trial Chamber}, and see also Furundzija judgment, supra note 52. 157 Tadic Appeal on Jurisdiction, supra note 36. 158 Furundzija judgment, supra note 52, at paras 132-133- Defence counsel for Furundzija had previously argued that torture and sexual violence committed in an international armed conflict, could only be charged as grave breaches. See Furundzija Decision of the Trial Chamber, supra note 156, and Furundzija judgment, paras 14 and 258. 159 Furundzija Judgment, ibid, at para 169. 160 Ibid, at para 274. 161 Art 4(e) Statute of the ICTR.

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has issued indictments in which sexual violence is treated as a violation of the laws and customs of war applicable to internal armed conflicts. 162 In the Akayesu case, the first decision in which this issue was considered, the Trial Chamber dismissed all charges under common Article 3 to the 1949 Geneva Conventions, and Protocol II, including the sexual violence charges. The Trial Chamber found that no link had been proved between the acts committed by Akayesu and the civil war taking place in Rwanda at the time. Accordingly the IHL treaty provisions specified were inapplicable to him. 1 ® A similar decision was reached in the case of Alfred Musema, where charges for sexual violence, as violations of the laws and customs of war, were also dismissed. 164 However, in the Akayesu case, the Trial Chamber did not question the basic proposition that sexual violence constitutes a violation of the laws and customs of war. 165 Furthermore, in the Musema case, the Chamber articulated the elements required to prove the crimes of "humiliating and degrading treatment", "rape", and "indecent assault", pursuant to Article 4(e) of the Statute of the ICTR. 1 6 6 The ICC Statute extends the recognition of sexual violence as a war crime, by expressly referring to "rape, sexual slavery, enforced prostitution, forced pregnancy ... enforced sterilization, or any other form of sexual violence ...", as war crimes in both international and internal conflicts.16? The provisions acknowledge that these acts can constitute: grave breaches; "other serious violations of the laws and customs applicable in international armed conflict"; "a serious violation of article 3 common to the four Geneva Conventions"; and "other serious violations of the laws and customs applicable in armed conflicts not of an international character". 168

162 See for example, Akayesu Indictment, supra note 89 (outrages upon personal dignity, in particular rape, degrading and humiliating treatment and indecent assault), Nyiramasuhuko Indictment, supra note 71, (outrages upon personal dignity, in particular humiliating and degrading treatment); Semanza Indictment, supra note 131; Musema Indictment, supra note 89 (outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault."). 163 Akayesu judgment, ibid, at para 643. For a short critique of this aspect of the judgment, see C Cisse, "The End of a Culture of Impunity in Rwanda?: Prosecution of Genocide and War Crimes before Rwandan Courts and the International Criminal Tribunal for Rwanda", (1998) 1 YB Int'l Hum L 161 at 171-172. 164 Musema Judgment, supra note 38, at paras 973-975165 Akayesu Judgment, supra note 38, para 688. 166 Musema Judgment, supra note 38, para 286. 167 See Art 8(2)(b)(xxii) (international armed conflicts), and Art 8(2)(e)(vi) (internal conflicts) Statute of the ICC. 168 See Steains, supra note 54 (for a discussion of the negotiations of provisions relating to sexual violence in the Statute of the ICC).

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(v) Other gender issues There are indications that the recent focus on gender in the context of sexual violence is beginning to prompt development on gender issues unrelated to sexual violence. For example, persecution on the grounds of gender has been recognised as a crime against humanity in the Statute of the ICC, 1 ® a r u } t n e u s e of genderbased propaganda as a method of inciting genocide is receiving some consideration at the international level.1'70 Furthermore, the Prosecutor of the ICTY has issued an indictment in which, inter alia, forcing women to perform domestic labour for soldiers is recognised as enslavement.171 b.

Gender and the Decision to Prosecute at the International Level

Responsibility for the prosecution of crimes committed during armed conflict has primarily been left to States. Nonetheless, the international community is willing to act in some instances. The Nuremberg and Tokyo Tribunals, although multilateral rather than international in nature, were the forerunners to the ICTY, the ICTR, and the ICC. A commonly stated theme of all these initiatives, is the desire to address crimes that shock the conscience of "mankind" (or, in gender-neutral terms, "humanity"). Some crimes are considered so serious, that the international community must act to protect its own interests. The discussion that follows examines the extent to which, to date, crimes against women during armed conflict have been considered to cause harm to the international community as a whole. (i) Nuremberg and Tokyo During his opening address to the Nuremberg Tribunal, Judge Robert H Jackson referred to the need to address crimes "so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated." 172 These words reflect the perception that the crimes under consideration at Nuremberg had attacked the very foundations of humankind, and had thereby become a matter for the community of nations to address.

169 See the discussion on crimes against humanity supra Chapter 3 notes 149 ffand accompanying text. See also Steains, ibid, at 370-371. 170 For example, Hutu propaganda in relation to Tutsi women was used to incite violence in Rwanda. See for example, Akayesu Judgment, supra note 38, at para 732, and Final Report submitted by Ms Gay ] McDougall, Special Rapporteur on Systematic Rape, Sexual Slavery and Slavery-Like Practices during Armed Conflict, UN Doc E/CN.4/Sub.2/1998/13 (22 June 1998) [hereinafter McDougall 1998 Final Report] para 81. 171 Foca Indictment, supra note 59. 172. As cited in T Taylor, The Anatomy of the Nuremberg Trials: A Personal Memoir (1992) 167.

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Despite the existence of widespread sexual violence in Europe throughout World War II, these crimes were given minimal consideration during the proceedings before the Nuremberg Tribunal. 17^ There is no express reference to crimes of sexual violence in the Nuremberg Charter. While the prosecution of these acts was not thereby excluded, this omission did evidence a lack of determination to acknowledge and prosecute them. 17 ^ Although no specific prosecutions for sexual violence were brought before the Nuremberg Tribunal, some evidence of rape was presented in the course of the proceedings to support charges of war crimes and crimes against humanity. '75 However, sexual violence was not expressly referred to in the Nuremberg Judgment. Sexual violence was thus treated as general evidence of the culpability of the accused, but not of itself among the crimes considered to shock the conscience of mankind, and to thereby warrant prosecution. The need to acknowledge and condemn crimes committed against other victims was acknowledged, but the needs of victims of sexual violence were overlooked. For example, Telford Taylor emphasised the need for "these incredible events [to] be established by clear and public proof, so that no one can ever doubt that they were fact and not fable . ,.". 1 7 6 When it came to the rape of French women in Nice by the Nazis, however, the French prosecutor said: "[t] he Tribunal will forgive me if I avoid citing the atrocious details ...", and moved on. 1 7 7 In addition to the silence on crimes of sexual violence, the Nuremberg Tribunal did not mention deliberate attacks targeting the civilian population, a practice that impacts significantly on women. This is despite the fact that the Nuremberg Charter recognised "wanton destruction of cities towns or villages, or devastation not justified by military necessity", as a war crime. 178 The expected reference by the Nuremberg Tribunal to the wanton destruction of cities in the trial of Herman Goering, the Commander-in-Chief of the Luftwaffe, was not forthcoming. 179 Furthermore, the United Nations War Crimes Commission received no notice of records of trial concerning the illegal conduct of air war

173 See for example, S Brownmiller, Against Our Will: Men, Women and Rape (1975) 48-78. See also Askin, supra note 111, at 52-93. 174 Sexual violence fits implicitly within the definition of crimes over which the Nuremberg Tribunal had jurisdiction. See the discussion supra notes 120 ff and accompanying text. 175 See Aydelott, supra note 51, at 590; and Brownmiller, ibid, at 54-56. 176 Trial of the Major War Criminals before the International Military Tribunal (1946) at 404-407, cited in A Goldstein, Recognising Forced Impregnation as a War Crime Under International Law (1993) 12. 177 Ibid. 178 Art 6 Nuremberg Charter. 179 See W Fenrick, "Attacking the Enemy Civilian as a Punishable Offence", (1997) 72 Duke] Comp &Int'l Law 539 at 550.

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fare. 180 One reason for the failure to pursue these crimes was the allies own culpability for extensive civilian casualties and damage to civilian objects, as a result of their policies of aerial bombardment. 181 The Tokyo Charter, in common with the Nuremberg Charter, did not expressly address the issue of sexual violence. 182 However, in contrast to the proceedings at Nuremberg, there were limited prosecutions for sexual violence before the Tokyo Tribunal. Rape was charged in the Tokyo Indictment, 183 and evidence of rape was presented to the Tribunal.18^ Several defendants were found guilty by the Tokyo Tribunal, on the basis of command responsibility, for crimes including rape.185 Overall, it was held that "[t]he evidence relating to atrocities and other Conventional War Crimes presented before the Tribunal establishes that from the opening of the war in China

180 See ibid. 181 See ibid. 182 See the Tokyo Charter, and see generally R Minear, Victor's Justice: The Tokyo War Crimes Trial (1971) 20. 183 In particular, Count 54 dealt with ordering, authorising and permitting the commission of violations of the laws of war, and Count 55 dealt with the failure to take adequate steps to secure the observance and prevent breaches of conventional laws of war in respect of civilian internees. Annex D, in which further particulars of these charges were set out, makes three specific references to rape crimes: Section One, charging the rape of female prisoners by members of Japanese forces as inhumane treatment; Section Five, charging the rape of female nurses; and Section Twelve, charging rape of the "inhabitants of the territories". See Pritchard & Zaide, supra note 128, vol I. 184 For example, evidence was presented of rape during the Japanese take-over of Nanking. One witness, when asked about the conduct of Japanese soldiers towards women in the city of Nanking stated that "not less than 20,000 cases of rape occurred." See Pritchard & Zaide, ibid, at vol 2 634. Rape was also reported in other places such as Burma (id, at vol 2 622), and Java (id, at vol 13 640-13 642). See further, Brownmiller, supra note 173 at 57-62. 185 The precise number of defendants found guilty of rape crimes by the Tokyo Tribunal is not clear. Rape is referred to in the verdicts against two defendants, namely Hata (Pritchard & Zaide, ibid, vol 20 at 49,791, referring to "violations of women" in Nanking); and Matsui (id, at 49,815, describing crimes, including rape, committed in Nanking). The Tokyo Judgment also refers to atrocities committed in Manila under Muto, which followed the same pattern as the atrocities in Nanking, giving rise to an implication that Muto was found responsible for rape crimes. See id, at 49,737, and Oosterveld, supra note 54 (arguing that Muto was found guilty of command responsibility for, inter alia, rape). However, it is arguable that, given the format of the indictment, all defendants who were found guilty under Counts 54 and/or 55 were implicitly found guilty of rape crimes as set out in Annex D to the Tokyo Indictment. See the discussion of the Indictment supra note 127. Such an argument is particularly strong with respect to those defendants found guilty under Count 55 for failing to take adequate steps to ensure compliance with, and to prevent breaches of, the laws of war (Hata, Hirota, Kimura, Matsui, Muto, Koiso, and Shigemitsu), although the Judgment is far from clear on this point. (The authors gratefully acknowledge the input provided by Ms Valerie Oosterveld on this point).

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until the surrender of Japan in August 1945 torture, murder, rape and other cruelties of the most inhumane and barbarous character were freely practiced by the Japanese Army and Navy."181' With respect to Japanese atrocities in Nanking, the Tribunal accepted that "[approximately 20,000 cases of rape occurred within the city during the first month of occupation . ..",187 and that rape continued for a period of at least six weeks.188 General Matsui was convicted of war crimes and crimes against humanity based, in part, on evidence relating to rape committed by his troops in Nanking. The Tokyo Judgment recognises that, under General Matsui's direction, "[wjholesale massacres, individual murders, rape, looting and arson were committed by Japanese soldiers ...". "In ... six or seven weeks thousands of women were raped . ..". 189 Koki Hirota, who intermittently served as Japanese Foreign Minister between 1936-38, was convicted of failing to prevent breaches of the laws and customs of war, including "violations of women" in Nanking.190 General Muto was found guilty, on the basis of command responsibility, for crimes committed by his troops in Manila that followed a similar pattern to the atrocities committed in Nanking.191 The Tokyo Judgment also referred to some aspects of enforced prostitution by the Japanese Army.192 Overall, however, the approach taken in the Tokyo Trials was to use evidence of rape and other sexual atrocities to support charges of crimes against humanity and aggression, rather than as crimes in their own right.19^ In particular, evidence of sexual violence was used to establish command responsibility.19^ Although the Tokyo Tribunal attempted to address some crimes of sexual violence, there were significant omissions. For example, the crimes committed against the Korean "comfort women" were ignored, despite the Allied Powers' knowledge of them.195 Instead of public acknowledgment of the wrongs done to

186 187 188 189 190 191 192

Pritchard & Zaide, ibid, vol 20, at 49 592. Ibid, at 49 604-49 606. Ibid, at 49 612. A M at 49 815. Ibid, at 49 791. See the discussion supra note 185. See Pritchard & Zaide, supra note 128, vol 20 at 49 617 (referring to the period of Japanese occupation of Kweilin, where women were recruited "on the pretext of establishing factories", but in reality were "recruited into prostitution with Japanese troops".) Cf, however, Askin, supra note 111, at 185 (pointing out that there is little in the official transcript of the Tokyo Tribunal regarding forced prostitution). 193 See U Dolgopol, "Rape as a War Crime-Mythology and History", in Common Grounds, Violence Against Women in War and Armed Conflict Situations (1998) 122 at 123-124. 194 Ibid, at 124. 195 See Dolgopol, ibid, at 125.

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these women, they were denied a forum to recount their experiences. 196 Moreover, the Tokyo proceedings have been overshadowed by the work of the Nuremberg Tribunal, thus undermining some of the developments in the prosecution of crimes against women. ^7 (ii) The Security Council: the ICTY and the ICTR In establishing the ICTY and ICTR, the Security Council determined that the prosecution of individuals for war crimes is a legitimate part of its mandate under Chapter VII of the UN Charter,198 thereby paving the way for greater enforcement of international criminal law applicable to armed conflict. The rationale for the establishment of the ICTY and the ICTR included the goal of deterring future violations of IHL;199 the need for justice in order to establish lasting peace for States recovering from armed conflict;200 and the

196 See U Dolgopol, "Women's Voices, Women's Pain", (1995) 17 HRQ 127 at 149. 197 See Morris & Scharf, ICTR, supra note 38, at 8, and Dolgopol, ibid, at 124 (speculating as to the relevance of race in explaining the differing status accorded to the jurisprudence of the two tribunals). 198 Pursuant to Art 24 of the UN Charter, the Security Council has primary responsibility for the maintenance and restoration of international peace and security. For a discussion of the powers of the Security Council, see B Simma ed, The Charter of the United Nations: A Commentary (1994). 199 The objective of deterrence was reflected in para 7 of resolution 827, establishing the ICTY. In respect of resolution 808 (1993) see the statement of the representative for France, Provisional Verbatim Record, UN Doc S/PV.3175 (22 Feb 1993) [hereinafter Recordfor Res 808] reprinted in V Morris & M Scharf, An Insider's Guide to the International Criminal Tribunal for the Former Yugoslavia (1995) [hereinafter Morris & Scharf, ICTY] 157, 163-165. In respect of resolution 827 (1993) see the statement by the country representative for Russia, Provisional Verbatim RecordXJN Doc S/PV. 3217 (25 May 1993) [hereinafter Record for Res 827] reprinted in id, 177 at 207-208. During the adoption of resolution 808, the representative of Spain referred to the "dual objective of meting out justice and discouraging such grave violations in the future", see Recordfor Res 808, at 173. At the time that resolution 827 was adopted, the representative of the United Kingdom stressed the need to make it clear to individuals committing war crimes, that they would be held accountable, see Recordfor Res 827, at 189. Similar statements were made during discussions of the ICTR. See Provisional Verbatim Record, UN Doc S/PV.3453 (8 Nov 1994) [hereinafter Recordfor Res 955]. 200 At the time of the adoption of resolutions 808 and 827, various members of the Security Council pointed out that bringing the perpetrators of crimes to justice, was an integral part of achieving a lasting settlement of the entire conflict. See the statements of the representatives of Hungary and Spain, Recordfor Res 808, ibid, at 170, and 172, respectively. In respect of resolution 827, the representative for Hungary again emphasised that in order to achieve lasting peace in the former Yugoslavia, those committing atrocities should be brought to justice. See Recordfor Res 827, ibid, at 192. See also the discussion during the establishment of the ICTR, by the representatives of Russia and Spain, Record for Res 955, ibid, at 11; the representative of Rwanda, id, at 14; and the representative of Oman, id, at 17.

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demand for retribution, particularly in the case of Rwanda.201 Some member States of the Security Council also made passing references to the needs of victims.202 However, arguably the most dominant theme was the need to take action in response to crimes that shock the conscience of the international community. The need to address "crimes affecting the very essence of the civilized conscience ...", was emphasised by Venezuela during the Security Council debates on the establishment of the ICTY.20^ The representative of Brazil referred to the deep shock and outrage that Brazil and other States had experienced when hearing of the atrocities committed in the former Yugoslavia, that "could not in any way be tolerated by the international community."20^ Similar sentiments were expressed by States in the context of the establishment of the ICTR. France was concerned to punish persons who had engaged in "acts so serious that they are repugnant to the conscience of mankind," and referred to the role of the Tribunal of serving justice on behalf of all "mankind".2°5 The Czech Republic was of the view that, despite the internal nature of the conflict in Rwanda, it had consequences for the entire international community, in light of the fact that "fundamental principles of international humanitarian law were violated."20^ Thus the ICTY and the ICTR were established to address crimes that were perceived to inflict injury upon the international community, as well as on the individuals directly affected. The Security Council is a political body and political considerations determine the circumstances in which it will act. For example, the creation of both the ICTY and ICTR has been interpreted by many as an attempt to atone for the primary failure of the UN to effectively perform its role of conflict

201 The Russian representative stated that he believed the main task of the ICTR was to hand out the punishment deserved by those violating the law of armed conflict, see Recordfor Res 955, ibid. 202 During the adoption of resolution 808, the representative for France emphasised the need to ensure that justice was obtained for victims as well as the international community, Recordfor Res 808, ibid, at 163-164. During the adoption of resolution 827, States emphasising the need for victims to be compensated, included Spain, Recordfor Res 827, supra note 199, at 205; Venezuela, id, at 181; the United States of America, id, at 188; and Morocco, id, at 196. 203 Recordfor Res 827, ibid, at 181. 204 Ibid, at 200. 205 Ibid, at 3. See also the comments of the representatives of New Zealand, ibid, at 4; the United Kingdom, id, at 6; Argentina, id, at 8; and Rwanda, id. at 14. 206 Ibid, at 6-7.

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prevention and management. 207 Culture and race have also been identified as significant determinants of the response of the Security Council. 208 An analysis of events surrounding the creation of the ICTY and ICTR reveals that gender is also a factor.209 The discrepancies in the treatment by the Security Council of sexual violence in the former Yugoslavia and Rwanda, during and leading up to the establishment of the ICTY and ICTR, were examined in Chapter 5. 2 1 0 While the sexual violence experienced by Bosnian women shocked the conscience of the international community, the sexual violence inflicted upon women in Rwanda was overlooked.211 Gender has also played a role in the subsequent work of the ICTY and the ICTR.

The ICTY From the commencement of its operations, the Office of the Prosecutor of the ICTY has been conscious of the need to effectively prosecute sexual violence. 212 Certain structures were put in place to achieve this end. For example, an investigation team, composed of both men and women, was established to look specifically into sexual violence. 213 A Victims and Witnesses Unit was

207 In the context of the ICTR, see for example, Morris & Scharf, ICTR, supra note 38, at 48 (detailing criticism of the Security Council for withdrawing peacekeepers from Rwanda as the killings began in 1994), and at 61 (regarding the inability of the UN to resolve the conflict in the former Yugoslavia). In the context of the ICTY, see for example, I Guest, On Trial: The United Nations, War Crimes, and the Former Yugoslavia (1995) 8 (reporting that in a January 1994 speech, the President of the ICTY agreed that the creation of the Tribunal, "was seen as a substitute for the kind of tough action that might have stopped ethnic cleansing by the Serbs"). 208 See for example, P Akhavan, "The International Criminal Tribunal for Rwanda: The Politics and Pragmatics of Punishment", (1996) 90 AJIL 501 at 501 (commenting that "the plight of African victims [does] not generate the same outcry as the suffering of Europeans"). 209 This is the case generally in relation to Security Council action in recent times. See for example, A Orford, "The Politics of Collective Security", (1996) 17 Mich] Int'lL 362 at 373 (on the gender-differentiated consequences of decisions by the Security Council to impose economic sanctions, or initiate military peacekeeping or peace enforcement operations). 210 See the discussion supra Chapter 5 notes 173 ffand accompanying text. 211 See the discussion supra Chapter 5. 212 See for example, Viseur Sellers & Okuizumi, supra note 54; and Report of the Secretary-General, Rape and Abuse of Women in the Areas of Armed Conflict in the Former Yugoslavia, UN Doc A/51/557 (25 Oct 1996) [hereinafter Secretary-General 1996 Report on Rape] especially para 22 (giving statistics for sexual violence prosecutions by the ICTY). 213 Secretary General 1996 Report on Rape, ibid, at para 23. See also, Karadzic and Another, Rule 61 Hearing, Case No IT-95-18 Transcript for Tuesday, (2 July 1996) (statement of Miss Irma Oosterman, an investigator in the ICTY "sexual assault" team).

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established, and became operational in April 1995. 2 l 4 Further, a Legal Adviser for Gender Issues was appointed "[i]n order conscientiously to address the prevalence of sexual assault allegations ...". 21 5 Even so, the ICTY made a precarious start in the prosecution of sexual violence. One of the first indictments issued by the Prosecutor was in relation to acts alleged to have taken place at the Susica detention camp in eastern Bosnia and Herzegovina. The indictment contained no charges of sexual violence.21^ Subsequently, a hearing was held in the matter pursuant to Rule 61 of the ICTY Rules. During the course of the hearing, several witnesses gave testimony regarding sexual violence. In its judgment, the Trial Chamber invited the Prosecutor to amend the indictment to include charges of sexual violence, stating that: From multiple testimony and the witness statements submitted by the Prosecutor to this Trial Chamber, it appears that women (and girls) were subjected to rape and other forms of sexual assault during their detention at Susica camp. Dragan Nikolic and other persons connected with the camp are alleged to have been directly involved in some of these rapes or sexual assaults. These allegations do not seem to relate solely to isolated instances. The Trial Chamber feels that the prosecutor may be well-advised to review these statements carefully with a view to ascertaining whether to charge Dragan Nikolic with rape and other forms of sexual assault, either as a crime against humanity or as grave breaches or war crimes.2''7 The Prosecutor subsequently amended the indictment to include charges of sexual violence. 2 '^ Nonetheless, the failure of the Prosecutor to uncover this evidence at an earlier stage calls into question the extent to which pro-active strategies for investigating sexual violence are being employed, and/or the extent to which investigations are being conducted in a gender sensitive manner. Concerns have also been raised that, despite the prevalence of sexual violence during the

214 Report of the International Tribunalfor the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991, UN Docs A/50/365, S/1995/728 (23Aug 1995) [hereinafter ICTY 1995 Annual Report] para 108. 215 Ibid, at 15-16, para 44. The Legal Adviser for Gender Issues carries out work for both the ICTY and the ICTR, but is based in the Hague. 216 Prosecutor v Nikolic, Indictment, Case No IT-94-2 (in relation to acts alleged to have taken place at the Susica detention camp in eastern Bosnia and Herzegovina). 217 Prosecutor v Nikolic, Review of Indictment Pursuant to Rule 61, Case No IT-94-2 [hereinafter Nikolic Rule 61 Hearing para 33. 218 Nikolic Amended Indictment, supra note 58.

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conflict in Kosovo, over which the ICTY also has jurisdiction, none of the indictments initially issued by the Tribunal have sought to hold defendants accountable for rape and other similar crimes.21^ The ICTY, however, has made some progress in the prosecution of wartime sexual violence. A number of indictments have been issued charging sexual violence under various heads of jurisdiction contained in the Statute of the ICTY. 220 The practice of the Prosecutor is to treat rape expressly as a crime against humanity under the Statute of the ICTY. Sexual violence is also included under the umbrella of other relevant crimes, such as persecution, torture, enslavement, wilfully causing great suffering, cruel treatment, and genocide. 221 This approach involves a reinterpretation of general international criminal law norms so as to more accurately reflect the experience of women. Furthermore, a number of milestones have been reached in the prosecution of crimes of sexual violence. The first ever indictment by an international war crimes tribunal dealing exclusively with rape was issued in 1996, 222 and the first testimony in history, at the international level, from women regarding wartime rape, has been heard.22^ Moreover, when sexual violence cases have reached the trial stage, the judgments have, in many respects, reflected gender sensitive reasoning.22^ Another advance of particular significance for women is the prosecution before the ICTY of deliberate attacks upon the civilian population during the conflict in the former Yugoslavia.22? In many instances, women represent a large

219 See for example, "Serb Officers Backed Kosovo Gang Rapes", (21 Mar 2000) BBC News (reporting the comments of Ms Regan Ralph, Human Rights Watch). 220 See the discussion of the emerging gender perspective in international criminal law applicable to armed conflict, supra notes 55-168 and accompanying text. 221 See Viseur Sellers & Okuizumi, supra note 54. 222 Foca Indictment, supra note 59. 223 Tadic Judgment, supra note 78, at para 470 (testimony of Suada Ramie.) This testimony was used as general evidence against Tadic, but not as the basis for separate charges. The original charges against Tadic included forcible sexual intercourse against a female prisoner at the Omarska camp. However, these charges were subsequently withdrawn because the victim found it too difficult to testify. For a discussion of the treatment of sexual violence within the context of the Tadic case see, Askin, supra note 142, at 100-105. 224 For example, see the discussion of Celebici Judgment, supra note 31; and the Furundzija Judgment, supra note 52. 225 See for example, Prosecutors Blaskic, Second Amended Indictment, Case No IT-95-14; Prosecutor v Manic, Indictment, Case No IT-95-11 (attacks on Zagreb in May 1995); Prosecutors Rajic, Indictment, Case No IT-95-12 (attacks on the village of Stupni Do on 23 Oct 1993); Prosecutor v Galic, Indictment, Case No IT-98-29 [hereinafter Galic Indictment}; Prosecutor v Karadzic and Another, Indictment, Case No IT-95-18, (attacks on civilians in Tuzla, 1995); Prosecutor v Kordic and Another, Indictment, Case No IT-95-14/2 (attacks on civilians in the Lasva Valley from January to May 1993); Prosecutor v Milosevic and Others, Indictment, Case No IT-99-37 [hereinafter Milosevic Indictment}. See generally, Fenrick, supra note 179.

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proportion of the casualties of these strategies.22'' Most of the indictments issued focus on deliberate, rather than indiscriminate attacks against the civilian population, eliminating the need for more complex judgments about the relative value of the lives of civilians as opposed to military objectives.227 Nonetheless, the prosecution of attacks directed against the civilian population is a marked development in IHL, and has attracted criticism from various quarters. 228 The judgment issued by the ICTY against Blaskic for crimes committed in the Lasva Valley included convictions for unlawful attacks on civilians and civilian objects. 229

The ICTR There is scope in the Statute of the ICTR for the prosecution of sexual violence. As with the Statute of the ICTY, "rape" is expressly recognised as a crime against humanity. In addition, Article 4 of the Statute of the ICTR, relating to "Violations of Article 3 common to the Geneva Conventions and of Additional Protocol II", expressly refers to some types of sexual violence.23° This Article, in large part, is a reproduction of Article 4(2) of Protocol II. One exception is the omission of any reference to "slavery". Commentators justify this by pointing to "the absence of any reports of such conduct occurring in the context of the Rwandan conflict".231 It is suggested that sexual slavery, for example, as reported by Human Rights Watch, would be covered under other provisions of the Statute. 232 While it is true that other provisions do allow for the prosecution of the underlying sexual violence, refusing to recognise these crimes as slavery is discrimination.

226 See for example, Karadzic Indictment, supra note 88 (specifying that of those killed, 4 were children, 8 were women, 4 were "elderly", and 4 were men. Of those wounded, 15 were children, 15 were women, 10 were "elderly", and 10 were men); Galic Indictment, ibid; and Milosevic Indictment, ibid, Schedule E (Crkolez/Padalishte), Schedule G (Dakovica/Gjakove). Cf attacks in which men and boys were separated from the women and children for the purposes of execution. See for example, id, Schedule B (Bela Crkva), Schedule C (Velika/Krushe e Mahda — Mali Krusa/Krushe e Vogel), Schedule D (Dakovica/Gjakove), Schedule F (Izbica). 227 One exception was the indictment issued against Djukic, (see Prosecutor v Djukic, Indictment, Case No IT-96-20), that included charges for indiscriminate attacks against civilian targets in Sarajevo. However, the case against Djukic was closed after his death in May 1996. For a discussion of issues raised in the context of prosecutions for indiscriminate attacks against the civilian population, see Fenrick, supra note 179. 228 See for example Fenrick, ibid, at 539-540 (recounting criticism directed at the ICTY for charges issued against Djukic, by E Cody, "Is it a War Crime or Just War?", (7 Apr 1996) Washington Post C5). 229 See Prosecutor v Blaskic, Case No IT-95-14 Judgment (3 Mar 2000). 230 See the discussion on war crimes in the context of the ICTR supra Chapter 3. 231 See Morris & Scharf, ICTR, supra note 38, at 220. 232 Ibid. See the discussion supra Chapter 5 note 102 and accompanying text (regarding Human Rights Watch reports of sexual slavery during the conflict in Rwanda).

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Despite the inclusion in the Statute of the ICTR of crimes of sexual violence, in contrast to the ICTY, the determination to pursue prosecutions for such activities was not initially apparent in the operations of the ICTR. Initially, there was little action taken to investigate the widespread sexual violence that had occurred during the conflict in Rwanda. 233 Moreover, progress was slow in establishing the Victims and Witnesses Unit required by the rules, significantly hampering the preparation of cases for trial.23^ On 23 October 1997, a Tutsi woman known as Witness JJ took the stand

before the Rwanda Tribunal and gave evidence at the trial of Jean Paul Akayesu. Witness JJ described events that occurred while she was taking shelter in the Taba commune. She told how the interahamawe militia took young girls and women into a nearby forest to rape them. Witness JJ recounted a series of occasions on which she was subjected to multiple rape. She also explained how, by pure chance, she was out buying food for her baby when the killings began, and narrowly escaped being massacred along with the other women in the Commune. 23 ? A number of other women also gave evidence about sexual violence in, or near, the Taba commune. 2 ^ Despite the serious crimes that Witness JJ and others described, their stories very nearly remained untold. The original indictment against Akayesu did not allege sexual violence. The trial commenced, and when other witnesses began to make consistent references in their testimony to widespread sexual violence in and around the Taba commune, the issue could no longer be disregarded. Contemporaneously, an amicus curiae brief filed by a coalition of NGOs focussing on women's issues urged the Tribunal to request an amendment of the indictment against Akayesu to include sexual violence. 237 The trial was adjourned, and the indictment was amended to include charges of sexual violence, for which the accused was subsequently found guilty.238

233 See the discussion of the Akayesu case, infra notes 260 ff and accompanying text. 234 Report of the Secretary-General on the Activities of the Office of Internal Oversight Services, UN Doc A/51/789 (6 Feb 1997) [hereinafter Paschke Report] at para 54. See also E Neuffer, (12 Nov 1996) Boston Globe 1 (pointing out that three trials were delayed due to the absence of a witness protection program). 235 Akayesu Judgment, supra note 38, at paras 418-423. 236 For example, ibid, at paras 424-438 (regarding evidence given by Witnesses OO, KK, NN, and PP). 237 Amicus Brief regarding Rape in Rwanda, Respecting Amendment of the Indictment and Supplementation of the Evidence to Ensure the Prosecution of Rape and other Sexual Violence Within the Competence of the Tribunal, Prosecutor v Akayesu, Case No ICTR-96-4-T (2 Sep 1998) (submitted by Joanna Birenbaum & Lisa Wyndels, Working Group on Engendering the Rwandan Criminal Tribunal; Rhonda Copelon, International Women's Human Rights Law Clinic; and Jennifer Green, Center for Constitutional Rights) [hereinafter Amicus Brief regarding Rape in Rwanda]. 238 See the discussion of the Akayesu judgment, supra notes 90 ff and accompanying text.

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Some measures to improve expertise on gender issues have been implemented within the Office of the Prosecutor of the ICTR. In 1997, two workshops were held to train staff in the Office of the Prosecutor on gender issues.2^9 Furthermore, a Sexual Assault Team including lawyers, police personnel, and health professionals has been established, although a lack of overall gender expertise within the Office of the Prosecutor has been noted. 240 The Sexual Assault Team was sent to Rwanda in January 1999, with specific instructions to investigate sexual violence. 241 As a result the Prosecutor obtained evidence to support sexual violence allegations against Alfred Musema, who was the director of a tea factory in Gisovu, Kibuye prefecture in western Rwanda, during the 1994 conflict. The Prosecution sought to amend the indictment against Musema to include charges of sexual violence, midway through the trial. 242 The Trial Chamber granted this request, but the Judges expressed their disquiet at the delay between the obtaining of the evidence and the bringing of the motion to amend the indictment. 243 Defence counsel for Musema seized upon the manner in which the evidence regarding sexual violence had been obtained. It was alleged that the sudden decision of four witnesses to come forward on this issue in January 1999 demonstrated the evidence was fabricated.244 This argument did not ultimately prevail and, following completion of the trial, Musema was found guilty on several counts, including crimes against humanity for rape. 24 ^ The precedent-setting Akayesu and Musema judgments notwithstanding, the initial reticence of the ICTR to focus on crimes of sexual violence has reduced

239 See Amnesty International, International Criminal Tribunalfor Rwanda: Trials and Tribulations, AI Doc IOR 40/03/98 (Apr 1998) 17 and 20. The workshop in March 1997 focused on the problems encountered in the investigation and prosecution of sexual violence. The workshop in October 1997 focused on the protection of the victim or witness during investigations. 240 See Coomaraswamy 1998 Report, supra note 19, at III A. 241 See F Stockman, "ICTR/Rape Charges in Genocide Trial Trumped-Up, Lawyer Says", (30 Apr 1999) Internews. The sexual assault team was originally established in 1996, but was subsequently disbanded. See J Goodwin, "Rwanda: Justice Denied", in On the Issues (1997) 26 at 31. 242 See "Prosecution Wants Musema Indictment Amended to Include Rape", (29 Apr 1999) Foundation Hirondelle; and Stockman, ibid. The Prosecution alleged that Musema "committed acts of rape and encouraged others to capture, rape and kill Tutsi women, seeking refuge from attacks within the area". See "Rwandan Genocide Suspect Pleads Not Guilty to New Rape Charges", (6 May 1999) Foundation Hirondelle. 243 Judicial Diplomacy, "Sexual Crimes in the Forefront", . 244 "Defence Raises Doubts about Witness Recruitment", (30 Apr 1999) Foundation Hirondelle; and see Stockman, supra note 241. 245 See Musema Judgment supra note 38.

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the likelihood that many women will receive redress.2^6 Although further indictments charging sexual violence are being issued, the difficulty of successfully investigating and prosecuting these crimes increases as each year passes.24? Gender expertise and the decision to prosecute. The structural mechanisms created to investigate and prosecute international crimes have a marked influence on decisions about which crimes will be addressed. Women, and those with expertise on gender-related issues, are more likely to pay attention to the experiences of women resulting from armed conflict, and to address them in a sensitive, and thereby effective, manner. At the time of the Nuremberg and Tokyo Tribunals, it was unusual for women to participate in such initiatives, and records reveal that very few women were employed to assist with the prosecutions. 248 Similarly, one explanation for the failure to appreciate the seriousness of sexual violence in Rwanda is that the primarily male investigation teams initially sent in by the UN did not accord any priority to investigating crimes of sexual violence. 2 ^ Furthermore, Rwandan women were reluctant to speak to the male investigators and interpreters about such matters, particularly when inappropriate interview techniques were used.2^0 The Office of the Prosecutor of the ICTR has acknowledged insensitivity in its investigation of sexual violence.25!

246 See Coomaraswamy 1998 Report, supra note 19, at II. 247 See for example, Semanza Indictment, supra note 131, "General Ndindiyiliman Pleads Not Guilty to Ten Counts", UN Doc ICTR/INFO-9-2-231EN (indicating that the indictment against the defendant includes sexual violence and rape of Tutsi women); and "Former Commander of Reconnaissance Battalion Transferred to Arusha", (24 May 2000) Internews (indicating that the indictment against Nzuwonemeye (ICTR-2000-56), includes allegations that soldiers under his command "perpetrated rapes and other sexual crimes against Tutsi women"). Charges of rape against another defendant, Omar Serushago, were dropped in December 1998. See Former "Militia Leader, Omar Serushago Pleads 'Guilty' to Genocide and Other Crimes but 'Not Guilty' to Rape", ICTR Press Release (Arusha) 14 Dec 1998, cited in Oosterveld, supra note 54, at 20 note 67. 248 See for example, Askin, supra note 111, at 166-167 (pointing out that 3 women were employed as assistant prosecution counsel for the Tokyo Tribunal, and raising the possibility that this may have had been a factor contributing to the greater attention to gender crimes in that venue, as compared with the Nuremberg Tribunal). 249 See the discussion supra Chapter 5 notes 128 ff and accompanying text. 250 See for example, J Miller, "Another Kind of War Crime: One Rwandan Woman is Working to Make Prosecuting War-Time Rapists a Priority", (16 Sep 1997) Ottawa Citizen (reporting the comments by Alice Karekezi, a Rwandan woman working to ensure the ICTR adequately addresses crimes of sexual violence). See also Goodwin, supra note 241, at 31; and Human Rights Watch, Shattered Lives: Sexual Violence During the Rwandan Genocide and its Aftermath (1996). 251 Akayesu Judgment, supra note 38, at para 417.

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Despite the pivotal role played by the Office of the Prosecutor in determining which crimes to investigate and prosecute,252 neither the Statutes of the ICTY and ICTR, nor their respective Rules of Procedure and Evidence, contain any requirements regarding the employment of women and staff with gender expertise.253 Nevertheless, in some respects, the sensitivity shown to gender issues in the practice of the Tribunals and the level of inclusion of women in its processes has been better than might have been expected. The first Chief Prosecutor, Richard Goldstone of South Africa,25^ recognised that international law had previously paid insufficient attention to sexual violence, primarily because "the laws were conceived of and drafted by men," 2 ^ Since then, two women have held the position of Chief Prosecutor.251^ Upon taking up office, Louise Arbour, the first of these women, stated her commitment to effectively prosecute crimes of sexual violence.257 Other women, and staff with gender expertise, have been appointed within the Office of the Prosecutor of the ICTY. In particular, the work of the Legal

252 See Arts 16 and 18 Statute of the ICTY, and Arts 15 and 17 Statute of the ICTR. 253 The Report of the Secretary General leading to the adoption of the Statute of the ICTY, noted that due consideration should be given to the employment of qualified women in the Office of the Prosecutor. This comment was prompted by reference to the sexual violence crimes that had been committed during the conflict in the former Yugoslavia. See Secretary General's Report on Aspects of Establishing an International Tribunalfor the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia (Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), UN Doc S/25704, (1993) para 88. However, no express requirement regarding sex composition in the Office of the Prosecutor, was ultimately included in the Statute of the ICTY, or in the ICTY Rules of Procedure and Evidence. The position is the same with regard to the Statute of the ICTR and die Rules of Procedure and Evidence of the ICTR. 254 Goldstone was appointed on 8 July 1994 and took office on 15 August 1994. See ICTY 1995 Annual Report supra note 214, at para 36. 255 Interview with Richard Goldstone, in S Saywell, Rape: A Crime of War (Canadian National Film Board Documentary, 1996). 256 Ms Louise Arbour of Canada was appointed by Security Council resolution 1047(29Feb 1996) and took up her position on 1 Oct 1996. See Report of the International Tribunal for the Prosecution of Persons Responsiblefor Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991, UN Doc A/51/292, S/1996/665 (16 Aug 1996) [hereinafter ICTY 1996 Annual Report] para 87. Ms Carla Del Ponte of Switzerland was appointed pursuant to Security Council Resolution 1259 (11 Aug 1999) and took up her position on 15 Sep 1999. 257 Second Annual Report of the International Criminal Tribunalfor the Prosecution ofPersons Responsible for Genocide and other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States between 1 January and 31 December 1994 covering the period from 1 July 1996 to 30 June 1997, UN Doc AI52I5S2, S/1997/868 (1997) [hereinafter ICTR 1996-97 Annual Report} para 52, cited in Morris & Scharf, ICTR, supra note 38.

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Adviser for Gender Issues has had a significant bearing on the attention paid to crimes committed against women. 258 T/he ICTR has had a much slower start. The cross-appointment of the Legal Adviser for Gender Issues between the ICTY and ICTR has improved matters, but greater attention to sex composition and gender expertise in all areas, and particularly in the investigation teams, should be a priority. The appointment of women judges, and judges with gender expertise, also has an influence on the extent to which crimes against women are effectively dealt with. For example, the remarks of Judge Pal at the Tokyo Tribunal have been criticised as exhibiting gender bias, and a failure to understand the nature of rape. 259 By way of contrast, in the early stages of the Akayesu case before the ICTR, much of the evidence about sexual violence was prompted by questions from a female Judge, Judge Pillay, from South Africa.260 Gender expertise is also important among the staff recruited to assist the judges, especially in cases where the judges themselves lack such expertise. After a visit to the ICTR, the Special Rapporteur on Violence against Women expressed concern about the lack of gender expertise amongst judicial support staff.261 NGOs focussing on women's issues and other advocates for women's rights have been pivotal in this emerging gender perspective in international criminal law applicable to armed conflicts, and their significance is recognised in the Statutes of both the ICTY and ICTR. For example, the Prosecutor, in deciding what crimes to investigate and prosecute, may have regard to information obtained by other sources, "particularly from Governments, United Nations organs, intergovermental and non-governmental organizations." 262 Furthermore, "[a] Chamber may, if it considers it desirable for the proper determination of the case, invite or grant leave to a State, organization or person to appear before it and make submissions on any issues specified by the Chamber." 263 Through this mechanism of amicus curiae, advocates for women's

258 See also Steains, supra note 54, at 380 (recounting the references by delegations to the instrumental role played by Patricia Viseur Sellers as Legal Adviser for Gender Issues, during the negotiations of the Statute of the ICC). 259 SeeAskin, supra note 111, at 184-185. 260 See Steains, supra note 54, at 378 footnote 67 (citing transcripts of testimony of Witness J (reported on Reuters American Wire (27 Jan 1997); and Witness H (6-7 Mar 1997); and Women's Caucus for Gender Justice in the International Criminal Court, Recommendations and Commentary for the March 1998 PrepCom: Part II (Procedure) (1998) 4 and 16). 261 Coomaraswamy 1998 Report, supra note 19, at III A. 262 See Art 17 Statute of the ICTR, and Art 18 Statute of the ICTY. 263 Rule 74 Rules of Procedure and Evidence of the ICTY, and Rule 74 Rules of Procedure and Evidence of the ICTR.

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rights have made representations on various issues affecting women, some of which have contributed to positive developments. 264 Moreover, these processes have assisted in raising the overall consciousness of gender issues in proceedings before both the ICTY and the ICTR. (iii) The ICC and the decision to prosecute The ICC Statute provides that cases that are being investigated or prosecuted by a State having jurisdiction over them are inadmissible, "unless the State is unwilling or unable genuinely to carry out the investigation or prosecution." 2 ^ Gender considerations should contribute to the assessment of the willingness or ability of a State to investigate and prosecute crimes. While a gender perspective may be emerging at the international level regarding the prosecution of crimes committed in armed conflict, this is not necessarily the case in all domestic legal systems. For example, historically, States have rarely punished members of their armed forces for crimes of sexual violence. If such attitudes prevail at the national level, the ICC should intervene. The manner in which prosecutions are conducted at the domestic level should also be a factor taken into account in the assessment of the ability of a State to prosecute a crime. As the Special Rapporteur on Systematic Rape, Sexual Slavery and Slavery-Like Practices during Armed Conflict comments: the extent to which the municipal legal system in question adequately protects as a matter of general concern the rights of women to present and argue their legal claims on an equal basis with men in a court of law ... [and] the existence

264 See for example, Amicus Curiae Brief submitted by Professor Christine Chinkin, Dean and Professor of Law, University of Southampton, United Kingdom in the case of Prosecutor v Tadic [hereinafter Chinkin Brief]; and Amicus Curiae Brief submitted by Rhonda Copelon, Felice Gaer, Jennifer Green and Sara Hossain in the matter of protective measures for victims and witnesses, in the case of Prosecutor v Tadic [hereinafter Joint US Brief]. See also Green etai, supra note 51, at 171 (recounting submissions made to the judges of the ICTY "for the purpose of influencing the rules adopted by the Tribunal for the prosecution of rape and other sex crimes."). See further: Amicus Brief regarding Rape in Rwanda, supra note 237; Amicus Curiae Brief on Protective Measures for Victims or Witnesses of Sexual Violence and Other Traumatic Events, Submitted by the Center for Civil and Human Rights, Notre Dame Law School, Prosecutors Furundzija, Case No IT-95-17/1-T (10 Dec 1998) [hereinafter Notre Dame Amicus Brief]; and Amicus Curiae Brief Respecting the Decision and Order of the Tribunal of 16 July 1998, Prosecutor v Furundzija, Case No IT-95-17/1-T (10 Dec 1998), Submitted by Working Group on Engendering the Rwandan Criminal Tribunal, International Women's Human Rights Law Clinic, Center for Constitutional Rights [hereinafter Furundzija Amicus Brief]. In addition, a report entitled Witness Protection: Gender and the ICTR, has been prepared by the NGO Coalition for Women's Human Rights in Conflict Situations. 265 Art 7( 1) (a) Statute of the ICC.

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of gender-based stereotypes and biases in municipal laws or procedures must be taken into account when assessing the general competence of domestic courts to adjudicate violations of human rights and humanitarian law that are directed against women. " The Special Rapporteur has identified many common failings of municipal law and procedures, from the perspective of women survivors of sexual violence. 267 For example, rape and other forms of sexual assaults have been defined as "crimes against the community and not against the individual victim". Laws of evidence frequently accord less weight to the evidence of women, or require corroborating testimony from men in cases of rape and sexual assault. In some jurisdictions, a married woman who is unsuccessful in proving rape is liable to a charge of adultery. Men can avoid punishment for rape in some legal systems by marrying the victim. Laws that prevent women from serving as judges, or as fact-finders, contribute to and exacerbate the difficulties faced by women in accessing remedies. 268 Thus, the assessment as to whether the ICC is required to act should be carried out with these gender considerations in mind. The ICC Statute provides several mechanisms by which investigations of alleged crimes may be commenced. 2 ® One of these is for the Prosecutor to initiate investigations, proprio motu.270 In analysing the seriousness of the situation, the Prosecutor may consult information provided by, inter alia, NGOs. 2 7 1 This procedure provides an opportunity for NGOs to bring information about crimes committed against women to the attention of the Prosecutor. Lack of education and limited resources are barriers to many individual women seeking redress. If NGOs are able to acquire expertise in, and funding for, the documentation of crimes for the purpose of criminal prosecutions, this provision will assist in overcoming the disadvantage women suffer in this context. Drawing upon the lessons learned from the ICTY and the ICTR, NGOs focusing on women's issues and other advocates for women's rights were determined to ensure that the Statute of the ICC paid attention to such issues as the participation of women and the inclusion of persons with gender expertise. 272 As a result, the Statute of the ICC expressly addresses the need for women and

266 267 268 269 270 271 272

McDougall 1998 Final Report, supra note 170, at paras 92-94. Cf id, at para 95. Ibid. Ibid, at para 96. See generally, Arts 13, 14 and 15 Statute of the ICC. Arts 13(c) and 15(1) Statute of the ICC. Art 15(2) Statute of the ICC. See Steains, supra note 54, at 375-382.

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persons with gender expertise to be appointed throughout the Court. 273 Moreover, the Office of the Prosecutor is specifically required to appoint a legal adviser with expertise on specific issues, including sexual and gender violence.27^ The requirements in the Statute of the ICC concerning the participation of women and the inclusion of persons with gender expertise are unprecedented and have the potential to significantly improve the extent to which crimes committed against women during armed conflict are prosecuted at the international level. c.

Gender and the Conduct of Prosecutions at the International Level

When crimes committed against women during armed conflict are prosecuted at the international level, gender perspectives should be incorporated into the manner in which the cases are prepared and the proceedings conducted. Failure to do so further traumatises women, instead of providing an acknowledgment of the wrong done to them. Furthermore, women will be dissuaded from coming forward to report offences, and thereby denied redress. Investigation procedures must be formulated to overcome discriminatory attitudes that inhibit women from talking about the crimes committed against them. All rape victims find it difficult to recount their experiences. In cultures in which sexual "purity" is highly valued, women find it especially difficult to talk about sexual violence. For example, women subjected to sexual violence during the apartheid years in South Africa, 275 anc { more recently in Bosnia and Kosovo, 276 have been reluctant to seek assistance. Similarly, cultural factors were initially used to justify the failure to investigate sexual violence against women during the 1994 conflict in Rwanda. Investigators stated that women would not talk to them due to the stigma attached to sexual violence in that culture. 277 However, it appears that irrespective of culture, many women would seek redress if certain measures were taken to minimise the trauma associated with

273 See the further discussion on the Statute of the ICC supra Chapter 3, note 196, and generally Steains, ibid, at 376-379. 274 See the further discussion on the Statute of the ICC supra Chapter 3, note 196, and generally Steains, ibid, at 379-382. 275 A Padarath, "Women and Violence in Kwazulu/Natal", in M Turshen & C Twagiramariya, What Women Do in Wartime: Gender and Conflict in Africa (1998) 62 at 66. 276 See for example, Helsinki Watch, War Crimes in Bosnia-Herzegovina (1993) 171-172 (describing the experience of young Muslim women in the former Yugoslavia); and C Williams, "In Kosovo, Rape Seen as Awful as Death", (27 May 1999) Los Angeles Times 1 (describing the ostracism of women and girls subjected to sexual violence in Kosovo). 277 See the discussion supra Chapter 5 note 128 and accompanying text.

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their speaking out. Procedures should be developed that provide women with a genuine choice between remaining silent and coming forward. For example, women investigators and interpreters should be provided. Often it will be necessary to ensure that appropriate medical personnel are included in investigation teams, in order to support and assist women. The training of investigators in matters relating to sexual violence is essential to ensure that the right questions are asked in the appropriate manner. Moreover, frequently sexual violence against women during armed conflict is associated with a range of other harms. Women have emphasised how important it is not to be singled out as "sexual violence victims", but rather for those crimes to be placed in the context of their overall experience. 278 To date, both the ICTY and the ICTR have accorded insufficient consideration to providing a climate conducive to the detection and prosecution of crimes of sexual violence. Consequently, crimes of sexual violence have gone unpunished despite witnesses who were willing to come forward with evidence.27^ The fear of repercussions and reprisals is another factor preventing women from giving evidence before the ad hoc Tribunals. In the context of the ICTR, the Special Rapporteur on Violence against Women identifies this problem as one of the most significant hurdles to providing redress for women. 280 Perceptions of the inability of the Tribunal to guarantee the safety of witnesses, reinforced by reports of witnesses being killed and threatened, have deterred women from speaking out. 28 ! It is difficult to ensure the protection of witnesses in the context of prosecutions at the international level, as there is no established law enforcement infrastructure to support the judicial proceedings. The Victims and Witnesses Unit of the ICTY and the ICTR were intended to perform this role. Initially, expectations were high that the Victims and Witnesses Units would be an innovative development in international criminal law.282 However, in practice, inadequate

278 See for example, the comments of witness Christine Cleiren in Karadzic Rule 61, supra note 54, Transcript of Proceedings (2 July 1996). 279 See the discussion on the Nikolic Rule 61 Hearing, supra note 217 and accompanying text, (in the context of the ICTY); and of Akayesu and Musema, supra notes 235 ffand accompanying text (in the context of the ICTR). 280 Coomaraswamy 1998 Report, supra note 19, at III A. 281 See for example, Miller, supra note 250 (regarding a witness in the Akayesu trial who was murdered, along with her husband and seven children, on her return home from giving evidence.) The ICTR has reported the murder of witnesses giving evidence in the Akayesu case and the Ruzindana case. The Tribunal denies, however, any relationship between these acts and the proceedings before the Tribunal. See ICTR 1996-97 Annual Report, supra note 257. See further, Coomaraswmay 1998 Report, ibid, at III A (recounting women's fears of repercussions and reprisals, and their lack of confidence in the protection scheme of the ICTR). 282 See Press Release of the ICTY, IT/6 I/Rev. 1, 5 May 1994, cited in M Kran, "Protecting the Interests of Victims at a Permanent International Criminal Court", 7 note 19 (copy held with authors).

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resources have been allocated to these initiatives, and as a result the ICTR Victims and Witnesses Unit, in particular, has failed to provide an effective witness protection program. 28 ^ The difficulties faced by the ICTR Unit are considerable. The Unit is responsible for arranging transportation and accommodation for those giving evidence before the Tribunal, and for maintaining contact and dealing with threats to witnesses on their return to Rwanda. 28 ^ However, witnesses travelling to Arusha are readily identifiable. Prospective witnesses are also required to disclose many personal details to the Rwandan Government, and are thereby exposed to the risk of identification.285 Moreover, there is little scope for relocation of witnesses not wishing to return to Rwanda. 28 ^ The availability of protective measures to prevent further traumatisation during the trial process is also a factor determining the willingness of women to give evidence about crimes of sexual violence. Many victims have concealed the crime from their families and communities, and require privacy and anonymity throughout the proceedings. In the absence of such measures, women are denied a genuine opportunity for justice.28^ The Statute and Rules of Procedure and Evidence of both the ICTR and the ICTY provide that proceedings must be conducted "with full respect for the rights of the accused", and "due regard for the protection of victims and witnesses".288 This formula is replicated in the Statute of the ICC. 2 8 9 Judges are required to determine whether protective measures requested for the benefit of victims and witnesses are consistent with a fair trial. In domestic legal systems, stereotypes based on gender are often employed in the exercise of judicial discretion. Such practices lead to discrimination against women and detrimental outcomes. In the context of the ICTY and the ICTR, the exercise of the discretion in relation to witness protection, to date, has produced mixed results.

283 See Morris & Scharf, ICTR, supra note 38, at 407 (describing the postponement of the Kayishema trial because the Office of the Prosecutor concluded that it was unsafe to provide the names of witnesses to the defence.) 284 See Amnesty International, supra note 239, at 18. 285 See for example, ICHRDD, "Survivors of the Rwandan Genocide Face Intimidation as they Prepare to Testify", (Dec 1997) 7(2) LibertasA (recounting the experience of one woman who had travelled to Arusha to testify, and who was subsequently nicknamed "Mrs Arusha" in her neighbourhood). See further Amnesty International, supra note 239, at 19. 286 Amnesty International, ibid, atl9-20, and 41. 287 Karadzic Rule 61, supra note 54 (comments of prosecution witness Irma Oosterman stressing the importance of anonymity, particularly for Bosnian women). 288 Art 19(1) Statute of the ICTR, Art 20(1) Statute of the ICTY. 289 Art 64(2) Statute of the ICC.

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The governing documents of the ICTY and the ICTR contain various provisions regarding protective measures for victims and witnesses.290 Both Tribunals routinely grant a range of protective measures for witnesses in sexual violence cases, including the use of pseudonyms, protective screens, image-altering devices, closed sessions, and video-link testimony.291 I n the Tadic case, the first case heard by the ICTY, the Tribunal ruled that the identity of witnesses who had been victims of sexual violence must be kept from the accused, even at the trial stage. 292 This decision drew intense criticism from some quarters as being contrary to the rights of the accused.293 However, this ruling of the Tribunal recognises the difficulties, and indeed the grave danger, inherent in being a witness in a prosecution for wartime sexual violence. The majority judgment emphasised that orders of this type would only be made in exceptional circumstances, having regard to certain specified factors, such as the extent of the fear for the safety of the witness, the absence of any prima facie evidence that the witness is untrustworthy, and the absence of an effective witness protection program. 29 ^ By way of contrast, the Furundzija case provides an example of the exercise of judicial discretion in a manner that may deter women from coming forward with evidence of sexual violence. In late June 1998, the Office of the Prosecutor of the ICTY disclosed to the Defence, documentation concerning psychological treatment received by a Prosecution witness (known as "A"), at the Medica Women's Therapy Centre in Bosnia and Herzegovina. The defendant was

290 See the further discussion supra Chapter 3 notes 177 ffand accompanying text. 291 See for example, Furundzija Judgment, supra note 52, at para 16 (recounting that "a number of protective measures at trial, including the use of pseudonyms, were ordered in respect of four Prosecution witnesses, two witnesses being granted leave to testify in closed session and the use of image-distortion being permitted in respect of two othets"). See also Celebici Judgment, supra note 31, at paras 49-50 (recounting that protective measures were granted for both prosecution and defence witnesses, including protective screens, image-altering devices, pseudonyms, closed sessions, and video-link testimony). Protective measures were also granted in the ICTR cases of Akayesu and Musema. 292 Prosecutor v Tadic, Decision on the Prosecutor's Motion for Protective Measures for Victims and Witnesses, Case No IT-94-1 (lOAug 1995) [hereinafter Tadic Decision on Protective Measures}. The Chamber was assisted by two amicus briefs both of which provided general support for the position taken by the Prosecutor. See Chinkin Brief, supra note 264; and Joint US Brief, supra note 264. 293 Judge Stephen strongly criticised this approach in his dissenting opinion in the Tadic Decision on Protective Measures, ibid. Commentators have also criticised the majority judgment. See for example, M Leigh, "The Yugoslav Tribunal: Use of Unnamed Witnesses Against Accused", (1996) 90 AJIL 235; and id, "Witness Anonymity is Inconsistent with Due Process", (1997) 91 AJIL 80. Cf C Chinkin, "Due Process and Witness Anonymity", (1997) 91 AJIL 75. 294 See Tadic Decision on Protective Measures, ibid; and see further the discussion in Morris & Scharf, ICTR, supra note 38, at 539-540.

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charged with the rape and torture of witness "A". The disclosure of these documents came several days after the Prosecution and the Defence had presented their closing arguments in the trial. The Trial Chamber found that the Prosecution had been guilty of misconduct in not disclosing this information earlier, and ordered that the case be reopened. 295 Part of the case for the defence was that Witness A's memory of the relevant events was flawed due to the trauma she had suffered and the time that had elapsed.29<5 The Chamber considered that an opportunity should be accorded to the defence for further investigation of the "medical, psychological or psychiatric treatment or counselling", received by Witness A. 29 ^ Subsequently, documentation provided by Medica concerning Witness A's treatment was disclosed in accordance with a subpoena issued by the Defence. This documentation revealed that Witness A may have been suffering from post-traumatic stress disorder. 298 In coming to this decision, the Judges Accorded insufficient weight to the right to privacy of women who have survived sexual violence and failed to challenge the discriminatory attitudes that underlie requests for confidential counselling information. It is common practice for defence lawyers in domestic settings to manipulate stereotypes of victims of sexual violence as mentally or emotionally unstable, in order to attack their credibility. Similar methods are rarely employed against victims of other types of crimes. In some jurisdictions, these practices have prompted legislation to protect women from discriminatory bias in the judicial system. 299 The potential prejudice to women survivors of sexual violence by the finding of misconduct on the part of the Prosecution in failing to disclose the documentation of psychological counselling in the Furundzija case, was mitigated to some extent in the Judgment. 300 In finding the accused guilty of violations of the laws and customs of war for sexual violence, the Trial Chamber expressly stated that a witness suffering from post-traumatic stress disorder may nonetheless be a reliable witness. 301 The Trial Chamber was of the view that it in all probability Witness A

295 See Prosecutor v Furundzija, Decision on Defence Motion to Strike Testimony of Witness A, Case No IT-95-17/1 (16 July 1998) [hereafter Furundzija Decision}; and Furundzija Judgment, supra note 52, at paras 90-109. 296 See Furundzija Judgment, ibid, at para 67. 297 See Furundzija Decision, supra note 295. 298 See Furundzija Judgment, supra note 52, at para 94. 299 See Furundzija Amicus Brief, supra note 264, at para 20. 300 See Furundzija Judgment, supra note 52. 301 Ibid, at para 109.

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was suffering from the disorder but were prepared to accept her evidence. 302 Nevertheless, the likelihood that confidential counselling or medical information will be made available to the Defence will discourage women from coming forward. If the process becomes too intrusive, the benefit for women of seeing offenders prosecuted will be outweighed by the trauma of the trial. The Statute of the ICC contains some progressive developments on the issue of witness protection. The Court is required to protect the "safety, physical and psychological well-being, dignity and privacy of victims and witnesses". Most importantly, the judicial discretion regarding protection of victims and witnesses is to be exercised having regard to, inter alia, gender considerations, including the nature of the crime, particularly where sexual violence is involved. 303 There is also greater scope for the views of victims and witnesses to be presented to, and considered by, the Court. 304 Both the ICTY and the ICTR have adopted evidentiary rules to minimise the traumatic effect of sexual violence prosecutions on women. 3 °5 p o r example, no corroboration of evidence given by victims of sexual violence is required.30^ The ICTY has also taken a strong stance on the issue of consent, specifying that "any form of captivity vitiates consent." 307 This makes it increasingly unlikely that a defence of consent could be successfully raised in respect of wartime sexual violence. Finally, judges must be sensitive to the cultural complexities involved in the prosecution of crimes against women, to ensure their equal access to justice. For example, in the Akayesu case, victims and witnesses of sexual violence gave evidence in the local language, Kinyarawanda, in which taboos prevent the use of direct words for sexual organs. The Defence objected to the use of metaphors by the witnesses. 308 In its judgment, the Trial Chamber made allowances for "the

302 Ibid, at paras 113-116. 303 See the discussion of Art 68 Statute of the ICC supra Chapter 3. Note also that the Rules of Procedure and Evidence of the ICTR specify that a "gender sensitive approach to victim and witness protective and support measures should be adopted." See Rule 34(b). 304 See the discussion of Art 68 Statute of the ICC supra Chapter 3. See also Steains, supra note 54. 305 See the discussion supra Chapter 3 notes 188 ff and accompanying text. For a discussion of these rules and their amendment history, see Viseur Sellers & Okuizumi, supra note 54, at 52-53. 306 See for example, Celebici Judgment, supra note 31, at para 963. See also Musema Judgment, supra note 38, at paras 44-46 (discussing the application of the rule that no corroboration of the testimony of sexual violence victims shall be required); and Tadic Judgment, supra note 78, at para 536 (explaining that Rule 96 "accords to the testimony of a victim of sexual assault the same presumption of reliability as the testimony of victims of other crimes, something long denied to victims of sexual assault by the common law"). 307 Furundzija Judgment, supra note, at para 271. 308 "Gang-rape in Rwanda was 'to humiliate us': Witness", (24 Oct 1997) Agence France Presse.

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cultural sensitivities involved in public discussion of intimate matters and ... the painful reluctance and inability of witnesses to disclose graphic anatomical details of sexual violence they endured."^0? d.

Prosecutions: An Assessment

The current approach to what constitutes international crimes more accurately reflects the perspective of women affected by sexual violence during armed conflict. The relevant legal provisions were always susceptible of an interpretation that acknowledged the particular experiences of women, although the opportunity was rarely taken up, reflecting a failure to understand the impact of these crimes or the importance of redress for women. Many of the developments on sexual violence against women are contained in the indictments issued by the ICTR and the ICTY, and are yet to be tested at trial. In most of the cases that have gone to trial, appeals are pending. Furthermore, the jurisprudence of the Tribunals is not a primary source of international law, although it has considerable normative effect.^10 There has also been a significant improvement in the commitment of the international community to prosecuting crimes of sexual violence, when compared with the multinational World War II war crimes trials. There are several explanations for the unsatisfactory treatment of these crimes by the Nuremberg and Tokyo Tribunals. First, sexual violence had long been accepted as an inevitable, albeit unfortunate, reality of armed conflict.^!1 The construction of sexual violence as a violation of the honour of women, and the failure to understand its violent nature, led to its trivialisation. Secondly, all parties to the conflict committed acts of sexual violence, making it difficult for any one party to bring allegations against another.312 Furthermore, during that period, matters regarded as "sexual" in nature Were universally regarded as inappropriate topics for public discussion. There was a perception that it was better to ignore the issue because of the shame it would inflict upon the women, as well as a lack of

309 Akayesu Judgment, supra note 38, at para 687. See also Musema Judgment, supra note 38, at para 103 (stating that the Trial Chamber did not draw "any adverse conclusions regarding the credibility of witnesses when cultural constraints appeared to induce them to answer indirectly certain questions regarded as delicate."). 310 See for example, C Chinkin, "Rape and Sexual Abuse of Women in International Law", (1994) 5 EJIL 326 at 336-337; and T Meron, "War Crimes in Yugoslavia and the Development of International Law", (1994) 88 AJIL 78. 311 See Brownmiller, supra note 173, at 31312 See generally ibid, at 48-78 (describing rape by all parties during World War II).

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commitment to addressing the cultural complexities involved.' 1 ^ Finally, there was no strong, mobilised, women's movement to challenge these attitudes, and women were largely absent from the mechanisms investigating and prosecuting war crimes. In combination, these factors resulted in the failure to consider sexual violence amongst the category of crimes "so calculated, so malignant, and so devastating, that civilizations cannot tolerate their being ignored, because it cannot survive their being repeated."^ In the 1990s, the response to sexual violence in the former Yugoslavia raised expectations that attitudes had changed. The taboo on public discussion of sexual matters was not so pervasive. Most importantly, the feminist movement had gained momentum and was well positioned to advocate for the recognition of gender issues at the international level. However, there is evidence that the condemnation of sexual violence by the international community in the Yugoslav context was, at least initially, confined to constructions of sexual violence that men could identify with: rape camps, and rape in pursuance of military orders.3^ The emphasis on these factors was also present in subsequent reports on sexual violence in Kosovo.3^ The continuing efforts of advocates for women's rights, together with the growing gender expertise located within the structures of the ICTY and ICTR, have evoked a wider recognition of the impact of sexual violence. Even so, the progress has been partial and fragmented, and concerns remain as to the ongoing commitment of the international community to overcoming the difficulties inherent in prosecutions for war-related sexual violence. There is evidence that neither the ICTY nor the ICTR are consistently pro-active in the investigation of these crimes, and sensitive strategies designed to minimise the cultural difficulties associated with speaking about sexual violence are yet to be fully implemented. The inadequate performance of the ICTR on gender issues has been exacerbated by the general mis-management that has plagued the Tribunal, particularly during the early stages of its operations. In 1997, a UN report was released stating that "not a single administrative area of the Registry (Finance, Procurement, Personnel, Security, General Services) functioned effectively".317 Similarly, the Office of the Prosecutor of the ICTR suffered severe "administrative, operational

313 Dolgopol, supra note 196, at 149 (referring to "... overtones of this attitude in Australian military documents"). 314 See the sources cited supra note 172. 315 See the discussion on this point supra Chapter 5 notes 149 ff and accompanying text. 316 See the discussion on rape in Kosovo in 1999, supra Chapter 5 notes 153 and accompanying text. 317 Paschke Report, supra note 234, at para 7. See further, Amnesty International, supra note 239.

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and leadership problems". 318 The difficulties were exacerbated by the failure of the international community to provide the necessary funding and support required for the effective operation of the ICTR.31C) However, within this poorly functioning framework, the experiences of women have been particularly neglected. Discrimination remains the underlying cause of the failure of the ICTR to address gender issues. To focus attention on the issue of sexual violence, various "special" mechanisms, such as sexual violence investigation teams and the post of Legal Adviser for Gender Issues, have been created. In other areas of international law, such "special" mechanisms for women have been marginalised. 320 Ideally, gender expertise should be "mainstreamed" throughout all mechanisms for the enforcement of international criminal law. Realistically, however, both "special" and "mainstreaming" initiatives will be needed for some time. Recent initiatives regarding the prosecution of wartime sexual violence are important and necessary developments, and demonstrate the need for continued assessment of international criminal law from a gender perspective. However, sexual violence is just one aspect of the trauma and loss that women suffer due to armed conflict. While the international community has shown some commitment to prosecuting deliberate attacks against the civilian population, other crimes particularly affecting women, such as indiscriminate attacks against the civilian population, have not been adequately pursued to date. 321 In this respect, little has changed since the Post-World War II war crimes trials. Nor has consideration been given to criminalising other acts affecting women during armed conflict. Perhaps, most significantly, the limitations of international criminal law need to be acknowledged. Currently, this method of addressing the problems of armed conflict is at the forefront of developments. However, only so much can be achieved by war crimes trials. Moreover, many of the harms women suffer due to armed conflict are unlikely to ever be addressed through criminal prosecutions and even if they were, this would only be part of the answer. The economic, health, and social effects of armed conflict identified earlier in this work, fall into this category. Confronting the humanitarian dimensions of these issues requires the development of different approaches and the commitment of considerable resources by the international community.

318 Paschke Report, ibid, at para 9. 319 Ibid, at paras 5 and 73. 320 See for example, B Clark, "The Vienna Reservations Regime and the Convention on Discrimination Against Women", (1985) 85 AJIL 281; and R Cook, "Reservations to the Convention on the Elimination of all Forms of Discrimination Against Women", (1990) 36 VirgJIL 643. 321 See the sources cited supra note 50 and accompanying text (regarding the Persian Gulf conflict (1990-91) and the NATO actions in Kosovo 1999).

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Compensation

Most individuals who suffer loss and damage as a result of armed conflict do not receive compensation. When compensation for war-related loss has been provided in accordance with the principle of state responsibility, it has usually been paid in a lump sum, pursuant to agreement between the belligerent states, rather than directly to the individual victim.322 Individuals are then dependent upon the willingness of the state to distribute these funds. 323 Overall, the norms of IHL regulating the provision of compensation are unsatisfactory for all victims of armed conflict.324 The relevant provisions are vague and fail to prescribe any specific procedure, or mechanism, by which individuals can pursue their claims. There are no conventional provisions providing compensation for victims of internal armed conflict. However, acknowledging the shortcomings regarding compensation for all victims of armed conflict does not detract from the need to ensure that a gender perspective is included in developments in this area. a.

World War II and Compensation for Women

The Charters of the Nuremberg and Tokyo Tribunals did not expressly include the power to order compensation, although both Tribunals were given a broad power to impose "death or such other punishment as shall be determined by it to be just."325 In practice, compensation regarding war-related harms from World War II has been limited to those cases where the government of the vanquished state has agreed to make payment. For example, Germany has paid billions of dollars

322 See generally, D Shelton, Remedies in International Human Rights Law (1999) at 333. 323 For example, the Treaty of Versailles of 28 July 1919 (reprinted in The Treaties of Peace 1919-1923, New York: Carnegie Endowment for International Peace, 1924) provided for the payment of a sum of compensation by Germany to the civilian victims of German air raids during World War I. The sum was paid into the Treasury, but not distributed. The Civilian War Claimants Association sued for recovery, but were unsuccessful, as the Treaty had not been incorporated into British municipal law. See Civilian War Claimant's Association Limited v R (1932) Appeal Cases 14. See generally F Kalshoven, "State Responsibility for Warlike Acts of the Armed Forces: From Article 3 of Hague Convention IV of 1907 to Article 91 of Additional Protocol I of 1977 and Beyond", (1991) 40 ICLQ 827 at 836. See also, F Domb, "Human Rights and War Reparation", (1994) 25IYHR77 at 85-90 (detailing, inter alia, reparations paid by Germany, the other five Axis States, and Japan following World War II.) 324 See the discussion of the relevant norms supra Chaprer 3 notes 209 ff and accompanying text. 325 See Art 27 Nuremberg Charter, and Art 16 Tokyo Charter. The Nuremberg Tribunal could also order the delivery of any property stolen by a convicted person, to the Control Council for Germany. See Art 28 Nuremberg Charter.

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in compensation for atrocities committed during the Holocaust, and these payments are continuing.^ Millions of victims have received individual compensation, although it is difficult to assess the degree to which women have benefited from these payments. Certainly, the focus of the early German municipal laws on restitution and compensation regarding identifiable property is likely to have been of benefit to more men than women.327 Overall, commentators have criticised the priority given to property and possessions over damage to life and health, as reflected in the compensation amounts ultimately paid by Germany.328 Moreover, the principle of territoriality inherent in the scheme has also worked to the detriment of refugees and stateless persons.^ The Japanese Government has been more resistant to claims for compensation following World War II. The case of the "comfort women" provides an example of the difficulties women face in obtaining redress. Although the Allies were aware of the existence of the "comfort women" at the conclusion of the War, no reparations were obtained from Japan for these crimes.33° This has been explained, in part, as an attempt by the Allies to keep war reparations to a minimum, and to establish a new-world order, with Japan as a major capitalist ally of the United States and Europe.33l It demonstrates the ease with which the interests of women are subordinated to political and economic priorities at the conclusion of armed conflict.

326 See for example, the discussion of Germany's post-war compensation scheme in Study Concerning the Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human rights and Fundamental Freedoms (Final Report Submitted by Mr Theo van Boven, Special Rapporteur to the Commission on Human Rights), UN Doc E/CN.4/Sub.2/1993/8 (1993) [hereinafter van Boven 1993 Final Report] paras 107-111; B Ferencz, "Compensating Victims of the Crimes of War", (1972) 12(3) VirgJ Int'l L 343 at 353; Shelton, supra note 322, at 333-337; and also K Parker & J Chew, "Compensation for Japan's World War II War-Rape Victims", (1994) 17 Hast Int'l & Comp LR 497 at 528-532. For information as to more recent claims, see for example, Germany-United States: Agreement Concerning Final Benefits to Certain United States Nationals who were Victims of National Socialist Measures of Persecution, reprinted in 35 ILM 193 (1996); I Traynor, "Nazi Slave's Win Opens Way for Claims from East", (16 Nov 1997) Guardian Weekly 4; and I Traynor, "Nazi Slave Victims Seek $1.5 billion", (17 Jan 1999) Guardian Weekly 4. 327 See van Boven 1993 Final Report, ibid, at para 107 (describing the focus of the early laws on compensation and restitution regarding property). 328 Ibid, at para 111. 329 Ibid. 330 See Dolgopol, supra note 196, at 147-150; and generally id, supra note 195, at 122 (describing archival documentation confirming that the Allies knew about the crimes committed against the "comfort women" at the conclusion of the war). 331 See K Howard, True Stories of the Korean Comfort Women (1995) vii.

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Since the War, Japan has consistently refused to pay compensation to individual "comfort women", despite the existence of relevant legal norms. 332 The Government denies legal liability, in part, on the ground that all claims for compensation were settled at the conclusion of the War. 333 I n the face of mounting pressure, in July 1995 the Asian Women's Fund was established, comprised of donations from the Japanese public. NGOs focusing on women's issues receive support from the Fund, and other general programs, such as counselling services, academic research, and public education on issues affecting women, are promoted. The Fund was also created to provide "atonement" money for the "comfort women", as a measure of conveying the remorse of the Japanese people.334 However, most of the women have opposed payment from the Fund, and have demanded that the Japanese government accept their legal obligation to pay compensation to individual women.335 This reaction illustrates the importance of official recognition of abuses committed against women during armed conflict. It is not simply the money that is significant, but also what the payment of the money represents — acknowledgment of the wrong that has been done. Despite some pressure from the UN, Japan has remained steadfast in its refusal to pay compensation on the basis of legal responsibility, and individual "comfort women" have been forced to pursue their legal claims through the domestic courts in Japan.336 One writer concludes: The fact that the contemporary international legal regime is inadequately equipped to provide such a monetary remedy to these women is surely a great failing of the century. An international legal system that makes piracy a violation erga omnes but fails to provide redress for mass rape — which has been a perennial problem during war or occupations-is a moral outrage.33'7

332 For a discussion of the relevant legal norms see McDougall 1998 Final Report, supra note 170, Appendix: "An Analysis of the Legal Liability of the Government of Japan for 'Comfort Women Stations' Established During the Second World War" [hereinafter McDougall 1998 Final Report Appendix] 38-55. 333 See for example, Written Statement Submitted by the International Fellowship of Reconciliation, a Non-Governmental Organization in Consultative Status (Category II), UN Doc E/CN.4/NGO/19 (4 Feb 1994) 15 (recounting Japans statement that "the claims issues between Japan and the Republic of Korea have been resolved by an agreement, signed on 27 June 1965 on the settlement of the problems concerning property and claims, and on the economic cooperation between Japan and the Republic of Korea."). See also Chinkin, supra note 21, at 215; and Boling, supra note 85, at 549334 See McDougall 1998 Final Report Appendix, supra note 332, at para 5. 335 See N Reilly ed, Without Reservation: The Beijing Tribunal on Accountability for Women's Human Rights (1996) 44. 336 See the discussion supra Chapter 5 note 53. For a discussion of the progress of these claims, see McDougall 1998 Final Report Appendix, supra note 332, at paras 49-51. 337 Boling, supra note 85, at 587.

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The United Nations Compensation Commission

The establishment of the UNCC was the first attempt by the international community to provide compensation for individual victims of armed conflict, and provides valuable insight into the types of war-related loss and injury that the international community nowadays considers to be compensable.338 Moreover, the recognition given by the UNCC to the harms and losses experienced by women as a result of armed conflict is unprecedented. As part of the settlement of the Persian Gulf conflict (1990-91), the UN Security Council established a Fund to pay compensation for "any direct loss, damage ... or injury to foreign governments, nationals and corporations, as a result of the unlawful invasion and occupation of Kuwait by Iraq."339 Such losses included, but were not limited to, violations of IHL.^° The establishment of the Fund was a measure to restore international peace and security under Chapter VII, and was a response to the violation of the Charter ban on the use of force by Iraq.^41 The UNCC was created to administer the Fund, and functions as a subsidiary organ of the Security Council.3^2 It is predominantly an administrative (fact-finding and evaluation of quantum) rather than a judicial body.343

338 See J Carver "Dispute Resolution or Administrative Tribunal: A Question of Due Process" in R Lillich ed, The United Nations Compensation Commission (1995) 69 at 74. 339 UN Doc S/RES/687 (3 Apr 1991) para 16. 340 See for example, J de Preux, cited in T Kamenov, "The Origin of State and Entity Responsibility for Violations of International Humanitarian Law in Armed Conflicts", in F Kalshoven & Y Sandoz eds, Implementation of International Humanitarian law (1989) 169 at 173 (describing the international legal principle whereby "[a] state which resorts to war in violation of the principle of Article 2, paragraph 4, of the United Nations Charter may be held responsible for all damages caused by such a war, and not only for those resulting from unlawful acts committed in the sense of jus in bello ...") See also B Opeskin & S Wright, "War Crimes and the Gulf War", (1991) 68(2) Current Affairs 12; O Schachter, "United Nations Law in the Gulf Conflict", (1991) 85 AJIL 452; and Human Rights Watch, Needless Deaths in the Gulf War (1991) (discussing violations of IHL during the Persian Gulf conflict (1990-91)). 341 See UN Doc S/RES/687 (3 Apr 1991), pre-amble. In UN Doc S/RES/692 (20 May 1991) (establishing the UNCC) and S/RES/705 (15 Aug 1991) (deciding that the levy on Iraq's oil exports shall be 30 percent), the Security Council states that it is acting pursuant to Chapter VII of the UN Charter. 342 See UN Doc S/RES 687 (3 Apr 1991); and S/RES/692 (20 May 1991). See also Report of the Secretary General Pursuant to Paragraph 19 of Security Council Resolution 687 (1991), UN Doc S/22559 (2 May 1991) [hereinafter Report of the Secretary General Regarding the UNCC\. 343 The UNCC is not intended to act as an arbiter in disputes between claimants and Iraq. See generally Carver, supra note 338, at 69. See also Report of the Secretary General Regarding the UNCC ibid, at para 25.

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The Fund is primarily financed by a thirty percent levy on the annual oil exports oflraq.344 Individuals, as well as corporations and governments, were eligible for compensation from the UNCC. Governments were required to file consolidated claims for individuals, who had no direct access to the UNCC.345 However, recognising the difficult position of stateless persons, the UNCC was authorised to accept submissions from "an appropriate person, authority or body" on their behalf.346 Six categories of claims were established for which compensation could be paid. A successful claimant was required to show that their injury fell within one of the specified categories, and that it was a direct result of the invasion. Four of the categories specifically relate to loss incurred by individuals, namely: departures from Iraq or Kuwait between 2 August 1990 and 2 March 1991 (Category "A"); serious personal injury, or death of spouse, child, or parent (Category "B"); and individuals claiming personal damages for losses up to $100,000, and exceeding $100,000 (categories "C" and "D" respectively). The latter two categories cover actual losses, such as "death or personal injury, or losses of income, support, housing or personal property, or medical expenses or costs of departure". 347 J n order to ensure the prompt payment of basic compensation for the most pressing humanitarian cases, Categories "A" and "B" were formulated to

344 See UN Doc S/RES/705 (15 Aug 1991) para 2. Additional sources of revenue were to be frozen funds from the export of Iraqi petroleum immediately prior to the embargo, as well as voluntary contributions. See C Alzamora, "The UN Compensation Commission: An Overview", in R Lillich ed, The United Nations Compensation Commission (1995) 3 at 13. Initially Iraq refused to resume oil exports under the conditions imposed by the UN, thereby crippling the capacity of the Fund to operate as intended. Limited amounts from Iraqi frozen funds and national contributions were made available in the initial phases of the operation of the UNCC in order to cover administrative costs and to pay some individual claims. See S Brower, "The Lessons of the Iran-US Claims Tribunal Applied to Claims Against Iraq", in R Lillich ed, The United Nations Compensation Commission (1995) 15 at 26. However, in resolution 986 (14 Apr 1995) the Security Council permitted Iraq to sell oil pursuant to the "oil-for-food" arrangement. (See also UN Press Release IK/218 (29 Apr 1997)). The provisions of resolution 986 were subsequently extended to allow further oil exports by Iraq resulting in the payment of additional sums to the UNCC (see for example UN Doc S/RES/1111 (4 June 1997)). 345 See UNCC Decision No 1, "Criteria for Expedited Processing of Urgent Claims", UN Doc S/AC.26/1991/1 (2 Aug 1991). 346 See, UNCC Decision No 10, "Provisional Rules for Claims Procedure'; UN Doc S/AC.26/1992/10 (26 June 1992) Art 5(2). 347 See UNCC Decision No 1, supra note 345.

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provide fixed payments upon provision of "simple" documentation.^ 8 If actual losses exceed the fixed amounts claims could be submitted, with more extensive documentation, under categories "C" and "D".349 Deadlines for filing claims in Categories "A", "B", "C", and "D", expired in January 1995, although some provision was made for filing late claims in certain cases.35° The U N C C is structured in a manner to facilitate claims by individuals, who, in many respects, are in a better position than corporate claimants and governments. 351 F o r example, claims of individuals, particularly those under Category "B", received priority at both the processing and the payment stage.352 The UNCC also gave preference to compensating damage suffered by civilians, determining that loss or injury sustained by members of the Allied Coalition Armed Forces would not be compensable. The only exception relates to members of these forces who sustained loss or injury arising from violations of IHL whilst prisoners of war of Iraq.353 Moreover, costs incurred by the Allied Coalition Forces in responding to the invasion were non-compensable.354 Claims by refugees and displaced persons As a result of the hostilities, many individuals were compelled to flee from Kuwait and Iraq. Some endured considerable periods of difficult living conditions in refugee camps.35 5 The UNCC recognised that various losses suffered by refugees and displaced persons should be compensated. The approach taken by

348 See ibid. In Category "A", the fixed amounts were US$2,500.00 for individuals, and US$5,000.00 for families. However, where the only claim made to the UNCC was in category "A", an individual was eligible to receive US$4,000, and for families the amount was US$8,000.00. In Category "B" the entitlements were US$2,500.00 for individuals, and up to US$10,000.00 for families. Interest is also payable on successful claims. See UNCC Decision No 16, "Awards of Interest", UN DocS/AC.26/1994/17, S/AC.26/1992/16 (4 Jan 1993). 349 See UNCC Decision No 1, ibid. 350 See The United Nations Compensation Commission Homepage . 351 See Brower, supra note 344, at 19-22. 352 See UNCC Decision 17, "Priority ofPayment and Payment Mechanism Guiding Principles", UN Doc S/AC.26/Dec.l7 (24 Mar 1994); and UNCC Decision 73 "Decision Concerning the Priority of Payment and payment Mechanism for the Second Phase of Payment", UN Doc S/AC.26/Dec.73 (24 June 1999). See also "Payment Procedure", . 353 See UNCC Decision No 11, "Eligibility for Compensation of Members of the Allied Coalition Armed Forces", UN Doc S/AC.261992/11 (26 June 1992) 443. 354 See UNCC Decision No 19, "Military Costs", UN Doc S/AC.26/Dec.l9 (Mar 1994). 355 See Report and Recommendations Made by the Panel of Commissioners Concerning Individual Claims for Serious Personal Injury or Death (Category "B" Claims), UN Doc S/AC.26/1994/1 (26 May 1994) [hereinafter Category "B" Recommendations, May 1994] pt II B 4.

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the UNCC sets an important precedent for women, who number disproportionately amongst refugee populations resulting from armed conflict. First, being forced to flee from Iraq or Kuwait, was, in and of itself, recognised as a compensable war-related harm under Category "A". To succeed, a claimant merely had to prove the fact, and the date, of departure. 356 Furthermore, under Categories "C" and "D", individuals were entitled to receive compensation for actual losses resulting from, inter alia, departure from Iraq or Kuwait.357 Such losses included the costs of transportation, lodging, food, relocation, and other similar expenses.358 T h e Commission noted the inflationary impact of the hostilities on the prices of goods and services.359 In the context of the Persian Gulf conflict (1990-91), many of those forced to flee were foreign nationals, some of whom were assisted by their own government to return home. 3 '' 0 The UNCC notes that the "vast majority of departees, however, arrived [in neighbouring countries] destitute with little or no means of returning to their respective countries. Food, shelter, clothing, and medical requirements were met in transit camps ...". 3( ' 1 Thus, the U N C C recognised that one of the most pressing humanitarian problems associated with war is the impact of being forced to flee a conflict zone. Secondly, claims were filed for serious injuries that were sustained in refugee camps. The UNCC determined that such injuries were a direct consequence of the invasion, and compensation was approved.3^2 Claims were also filed for

356 See Report and Recommendations Made by the Panel of Commissioners Concerning the First Instalment of Claims for Departure From Iraq or Kuwait (Category "A" Claims), UN Doc S/AC.26/1994/2 (21 Oct 1994) [hereinafter, Category "A" Recommendations, Oct 1994] 11. 357 See Report and Recommendations Made By the Panel of Commissioners Concerning the First Instalment of Individual Claims for Damages up to US$100,000 (Category "C" Claims"), UN Doc S/AC.26/1994/3 (21 Dec 1994) [hereinafter Category "C" Recommendations, Dec 1994\ 7; and Report and Recommendations Made By the panel of Commissioners Concerning Part One of the First Instalment ofIndividual Claims for Damages Above US$100,000.00 (Category "D"Claims), UN Doc S/AC.26/1998/1 (3 Feb 1998) [hereinafter Category "D" Recommendations, Feb 1998] para 131. 358 See Category "C"Recommendations, Dec 1994, ibid, at 59; and Category "D"Recommendations, Feb 1998, ibid, at para 115. 359 See Category "C" Recommendations, Dec 1994, ibid, at 61. 360 See Category "A" Recommendations, Oct 1994, supra note 356, at 10 and 24-25 (stating that the number of foreign nationals living in Kuwait and Iraq in mid-1990 was in excess of 2.6 million. "Hundreds of thousands" of these nationals were forced to flee following Iraq's invasion of Kuwait, some with the assistance of Government sponsored evacuation programmes). See also Category "C" Recommendations, Dec 1994, ibid, at 60 (stating that during the relevant period "at least 50 percent of Kuwaiti nationals and over 90 percent of the expatriate population [left] the country"). 361 See Category "A"Recommendations, Oct 1994, ibid, at 25; and Category "C"Recommendations, Dec 1994, ibid, at 61. 362 Ibid.

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injuries sustained during efforts to flee the conflict zone. The Commission accepted that these persons suffered from "exposure, heat stroke, exhaustion and stress, dehydration and other similar conditions."363 Mine and ordnance explosions presented further hazards. Finally, the UNCC recognised that "stateless persons and other individuals in the same position who still remain in Kuwait or who are situated on border lines", were included among the many individuals who would not be in a position to have their claims submitted by a Government.364 Furthermore, "[t]he international community, represented by the UNCC, bears the overall responsibility for protecting the interests of [these] individuals. "365 Accordingly, procedures were established to admit claims filed by "an appropriate, person, authority or body" on behalf of such persons. Several thousand such claims were filed by various UN organisations, including the UN High Commissioner for Refugees and the UN Relief and Works Agency for Palestine Refugees in the Near East.366 States were also permitted to submit claims on behalf of aliens or stateless persons resident in their territory, constituting a departure from traditional principles of diplomatic protection.367 Loss of family members

Many women are widowed or lose other family members during armed conflict.368 A significant development for these women was the recognition of such losses by the UNCC. Under Category "B", compensation was available for the death of a spouse, child or parent, resulting from the invasion. Higher levels of compensation could be awarded under Categories "C" and "D", with appropriate documentation of actual loss. Such losses include loss of support, and medical or burial expenses associated with the deceased. 369 With respect to the former, compensation was payable regardless of whether or not the deceased was earning an income prior to death, although different methods for calculating the

363 See Category "C" Recommendations, Dec 1994, supra note 357, at 101. 364 See UNCC Decision No 5, "Guidelines Relating to Paragraph 19 of the Criteria for Expedited Processing of Urgent Claims", UN Doc S/AC.26/1991/5 (23 Oct 1991), reprinted in R Lillich ed, The United Nations Compensation Commission (1995). 365 Ibid. 366 See the United Nations Compensation Commission Homepage . 367 See UNCC Decision No 1, supra note 345, at para 19. See also M Frigessi di Rattalma & T Treves eds, The United Nations Compensation Commission: A Handbook (1999) 8. 368 See the discussion on loss of family members supra Chapter 2. 369 See for example, Category "C"Recommendations, Dec 1994, supra note 357, at 115; and Category "D"Recommendations, Feb 1998, supra note 357, at para 185.

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payment were employed. 37° Compensation could also be claimed for mental pain and anguish resulting from the death of a spouse, child, or parent.37l Furthermore, in cases where an individual witnessed certain harms intentionally inflicted upon a spouse, child or parent, compensation for mental pain and anguish was recoverable.372 In some cases a deceased person had more than one lawful wife. The U N C C determined that, in such cases, "each wife and the children born from that union constitute a separate family unit".373 Such an approach was of significance given the ceilings set for recovery by each family regarding mental pain and anguish. Some Category "B" death claims were filed in respect of family members who had disappeared during the invasion. Often, inquiries made through the ICRC tracing services had been unsuccessful. Nonetheless, compensation was recommended in those cases "where from the documentation submitted it could be presumed that the 'missing' person is deceased. "374 Sexual violence The practice of the UNCC reflects an assessment that sexual violence, widely experienced by women during the Persian Gulf conflict (1990-91), is a compensable war-related harm.375 "Serious personal injury", for the purposes of Category "B" claims, is defined to include, inter alia, "instances of physical or mental injury arising from sexual assault".376 Moreover mental pain and anguish resulting from sexual assault was expressly made compensable.377 A ceiling of US$5,000.00 per incident of sexual assault was established. In cases of multiple injuries, a ceiling of $30,000.00 per claimant, and $60,000.00 per family, for mental pain and anguish applied. The same ceilings applied to mental pain and anguish claims for aggravated assault and torture, reflecting the categorisation of sexual assault as a violent crime.378 These claims, which were separate from

370 See Category "D" Recommendations, Feb 1998, ibid, at paras 212-226. 371 See UNCC Decision No 3, "Personal Injury and Mental Pain and Anguish", UN Doc S/AC.26/1991/3 (23 Oct 1991). 372 Ibid. 373 See Category "B" Recommendations, May 1994, supra note 355, at pt II A 2(e); and Category "C" Recommendations, Dec 1994, supra note 357, at 18. 374 See Category "B"Recommendations, May 1994, ibid, at pt II A 2(d). 375 See the sources cited in relation to sexual violence during the Persian Gulf conflict (1990-91) supra Chapter 2 at note 87. 376 See UNCC Decision No 3, supra note 371. Under Categories "C" and "D", injuries were not required to be "serious" in order to be compensable. See for example, Category "C" Recommendations, Dec 1994, supra note 357, at 104. 377 Ibid. 378 See UNCC Decision No 8, "Determination of Ceilings for Compensation for Mental Pain and Anguish", UN Doc S/AC.26/1992/8 (27 Jan 1992).

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claims for "mental harm" under Category "B", could be filed under Category "C" or "D", with appropriate supporting documentation.379 Claims asserting rape by members of the Iraqi military forces were filed with the UNCC under Category "B". Many women were unable to provide medical documentation of their injuries, and therefore recommendations were made to facilitate this process. The UNCC accepted that general documentation existed in relation to the rape of women by Iraqi forces, and acknowledged the fact that the level of emotional trauma and social stigma associated with rape inhibits many women from seeking medical assistance. In addition, the disruption attendant on armed conflict often prevents access to prompt medical attention. Consequently, compensation was recommended where sexual assault claims were established by circumstantial evidence.380 The UNCC noted one case in which a woman claimed she was sexually assaulted by Iraqi soldiers, and suffered a miscarriage as a result. The woman requested that her name be withheld from her claim. The Government filing the claim on her behalf was able to provide confirmation of the identity of the woman, and compensation was recommended, despite the anonymity of her claim.381 Some claimants sought compensation for mental pain and anguish arising from consecutive, multiple sexual assaults, under Category "D". The UNCC determined that "having regard to the comparative severity of the mental pain and anguish suffered by a victim of multiple assaults versus a single assault... the victim would be entitled to US$5,000 for each incident of sexual assault, up to a maximum of US$30,000.00".382 Under Categories "C" and "D", compensation could be claimed for mental pain and anguish resulting from being taken hostage, illegally detained or being forced into hiding.383 Payments for these losses were governed by restrictive criteria. For example, mental pain and anguish for forced hiding was only compensable if the claimant could establish that it was precipitated by a "manifestly wellfounded fear" for her or his life, or of being taken hostage, or illegally detained,

379 See Category "B"Recommendations, May 1994, supra note 355, at 282-283. 380 Ibid, at para 2(b). See also Category "C"Recommendations, Dec 1994, supra note 357, at 97, and 99-100. 381 See Category "B"Recommendations, May 1994, supra note 355, at 10, para 17. 382 See Report and Recommendations Made by the Panel of Commissioners Concerning the Third Instalment ofIndividual Claims for Damages above US$100,000.00 (Category "D" Claims), UN Doc S/AC.26/1999/9, (24 June 1999) [hereinafter Category "D"Recommendations, June 1999] para 13. 383 See UNCC Decision No 1, supra note 345; UNCC Decision No 3, supra note 371; and UNCC Decision No 8, supra note 378.

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and continued for a period of more than three days.38^ Having regard to UN documentation concerning the prevailing conditions in Iraq and Kuwait following the invasion, the Commission accepted that women were forced into hiding due to the fear of being sexually assaulted.38^ Accordingly, claims for forced hiding, based on "fear of sexual assault by members of the Iraqi armed forces, or officials, employees or agents of the Government of Iraq or its controlled entities, based on a knowledge of attacks against other persons, in the same or similar situations ...", were accepted as falling within the criteria specified.386 Thus, the UNCC took a progressive approach to the provision of compensation to victims of sexual violence, acknowledging the difficulties associated with reporting sexual violence, particularly during times of armed conflict. The absence of any accused person, whose rights could be prejudiced, allowed the U N C C to focus exclusively on the best interests of the women concerned. It is also significant that the UNCC considered all forms of sexual assault to be compensable, regardless of whether these acts were part of a widespread campaign of sexual violence. The focus, therefore, was on the harm suffered by the individual woman, rather than the context in which it occurred. Nevertheless, the UNCC had to make difficult decisions as to how best to allocate limited resources amongst many seriously affected individuals. The amounts recovered, particularly under the more flexible evidentiary rules of Category "B", do not necessarily reflect the many consequences of sexual violence for women. Sexual violence may leave women physically unable to have children in the future, or unable to form intimate relationships. A child may be conceived as a result of rape. Women victims are also at risk of contracting sexually transmitted disease, including HIV/AIDS. 38 ' 7 The extent to which larger claims for sexual violence were filed, and approved under Categories "C" and "D", (where there was greater scope for these types of losses to be recognised), is not clear.388

384 See UNCC Decision No 3, ibid. See also Category "C" Recommendations, Dec 1994, supra note 357, at 82 and 92. An amount of US$1,500.00 per claimant was payable for the first three days, plus US$50.00 per day for each additional day, up to a maximum of US$5,000.00 per claimant. See UNCC Decision No 8, ibid. 385 See Category "C"Recommendations, Dec 1994, ibid, at 84, citing the Kalin Report. 386 Ibid, at 94. 387 See the discussion of the health consequences of sexual violence supra Chapter 2 notes 197 ff and accompanying text. 388 For example, sexual assaults were not amongst the personal injury claims considered under category "D" claims in October 1998. See Report and Recommendations Made by the Panel of Commissioners Concerning Part One of the Second Instalment of Individual Claimsfor Damages Above US$100,000 (category "D" ckims"), UN Doc S/AC.26/1998/11 (2 Oct 1998) [hereinafter Category "D"Recommendations, Oct 1998] para 53.

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Overall, the amounts recovered for emotional harms, such as mental pain and anguish associated with sexual assaults, were limited, particularly when compared with the compensation provided for the loss of material items such as personal and real property. 3 8 9 Pregnant women The vulnerability of pregnant women to the trauma and disruption caused by the invasion, and particularly the lack of medical and specialised care, was noted by the UNCC, during consideration of Category "B" claims. 39° A miscarriage, unwanted abortion, or still-birth, following the invasion, was considered to constitute a "serious personal injury" to the women concerned. 391 In considering Category "D" claims, the UNCC accepted that prenatal injuries caused by war-related trauma should be compensated. In one case, foetal stress was caused by a scud missile attack, resulting in brain damage to the child. 392 Other economic losses Certain types of economic losses attributable to the invasion were recoverable under Categories "C" and "D". 3 9 3 Specific heads of damage were identified by the UNCC, including the loss of personal property, bank accounts, stocks and other securities, income, unpaid salaries or support, real property and individual business losses. 394 Moreover, mental pain and anguish occurring because "[t]he individual was deprived of all economic resources, such as to threaten seriously his or her survival and that of his or her spouse, children or parents in cases where assistance from his or her Government or other sources has not been provided ...", was also recoverable under Categories "C" and "D". 3 9 ^ Some of these categories of compensation were of much greater relevance to men than to women. For example, in determining the first instalment of claims for personal property losses under Category "C" the U N C C noted that men comprised almost three-quarters of claimants. 396 Similarly, the focus on

389 See for example, the restrictive ceilings imposed upon claims for mental pain and anguish in UNCC Decision No 8, supra note 378, and discussed supra note 378 and accompanying text. 390 See Category "B"Recommendations, May 1994, supra note 355, at pt II A 3(b). 391 Ibid. 392 See Category "D" Recommendations, June 1999, supra note 382, at para 14. 393 See UNCC Decision No 1, supra note 345. 394 See Category "C" Recommendations, Dec 1994, supra note 357, at 7. See also Category "D" Recommendations, Feb 1998, supra note 357. 395 UNCC Decision No 8, supra note 378. 396 See Category "C" Recommendations, Dec 1994, supra note 357, at 137.

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compensating losses associated with paid employment, and financial resources, significantly prioritises the types of damage suffered by men. Where women filed claims, it is difficult to assess whether the gendered aspects of their losses were recognised. For example, the economic vulnerability of women following conflict is often caused, or exacerbated by their responsibilities as care-givers and their low levels of education. It is unclear whether these types of factors were taken into account in determining whether a claimant had been deprived of all economic resources, or in assessing the ability of the claimant to mitigate their damages resulting from loss of employment. 397 While a claimant who was unable to work as a result of a permanent or temporary disability was entitled to compensation, there is no indication that a woman who was unable to work as a result of increased care giving demands, and/or reduced child care facilities, was similarly compensated. One development of practical importance for many women, was the provision of compensation for loss of economic support to family members where the income earner had lost employment due to the invasion, or as a result of a permanent or temporary disability.398 Health effects of conflict Compensation was provided by the UNCC C for some of the detrimental health effects of armed conflict. The UNCC documentation does not reveal the extent to which women benefited from such compensation. Nevertheless, the recognition of such harms is important given the particular impact of armed conflict on the health of women. The UNCC was required to consider Category "B" claims for serious personal injury and death in which "lack of availability of proper medical facilities and treatment in Kuwait" was a contributing factor.399 Recognising that the severely reduced level of healthcare in Kuwait resulted from the general breakdown of civil order following the invasion, the Commission determined criteria for payment of such claims. First, the claimant was required to demonstrate that the unavailability of medical care, normally regarded as indispensable, was directly related to the invasion. Secondly, the injury or death "must be the consequence of an acute deterioration, or of a very severe exacerbation, of the health condition

397 See for example, Category "C" Recommendations, Dec 1994, supra note 357, at 192 (regarding the duty imposed upon claimants to mitigate their losses); and Category "D" Recommendations, Feb 1998, supra note 357, at paras 317 and 320 (confirming the duty to mitigate damages and recognising the varying abilities of claimants to do so.) 398 See Category "C" Recommendations, Dec 1994, ibid, at 178. 399 See Category "B"Recommendations, May 1994, supra note 355, at pt II B(2).

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of a person, and not just of an aggravation arising from the normal course and development of a pre-existing illness or injury". 400 The UNCC accepted that a shortened life resulting from lack of medical care, even if the person had a very severe pre-existing illness, fell within these criteria.401 The U N C C considered a report that had been prepared on the mental health consequences of the invasion, which documented the prevalence of PTSD in Kuwait. 402 Compensation was paid to individuals suffering stress-related illnesses caused by the invasion, including "dysfunction of the internal organs, severe gastro-intestinal illnesses with substantial weight loss, chronic headaches, or painful skin rashes (e.g. eczema)." Frequently these illnesses resulted from experiences such as detention, forced hiding, or being held hostage.40^ Accountability at the national level The U N C C aimed to provide compensation directly to individuals, "while using governments as effective instruments of administration." 404 To this end, Governments have a responsibility to distribute the payments made by the U N C C to individuals, in a "fair, efficient and timely manner". They must provide written information to the UNCC, verifying the steps taken, and any sums not distributed to individuals are to be repaid to the UNCC. 4 0 ^ Thus compensation is paid to individuals "irrespective of the political wishes or settlements of national authorities". 406 For women, and other victims of the conflict, this minimises the risk that their interests will be overlooked, or sacrificed to political goals, at the national level.

400 Ibid. 401 See Report and Recommendations Made by the Panel of Commissioners Concerning Part One of the Second Instalment of Claims for Serious personal Injury or Death (Category "B" Claims), UN Doc S/AC.26/1994/4 (15.Dec 1994)Jljeteimfter_Gz*?<>grv/7r Recommendati/iBs..,necJ99AJ4..Se
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Flexibility in the claims process

The UNCC recognised that "considerations of logic, fairness and equity" must be considered in determining what losses were a "direct" consequence of the invasion.4°7 The humanitarian goals of the process also warranted a flexible approach to claims determinations.^08 The UNCC noted considerable divergence in the presentation of claim forms, with some containing confused or inaccurate information, and mathematical errors. Socioeconomic characteristics, and literacy levels among claimants varied significantly, as did the degree of assistance provided by Governments. Accordingly, for many, the completion of the claim form was a difficult exercise.4°9 The UNCC specifically acknowledged that the diversity observed in claims was due to, inter alia, disposable income, profession and professional status, age, sex, family status, and cultural and social background, and made an effort to take such factors into account in determining claims.^10 The flexible approach adopted by the UNCC allowed for some of the distinctive experiences of women that emerged during the process to be recognised and addressed. However, overall the UNCC did not specifically adopt a gendersensitive approach, nor did it consider the impact of gender and discrimination in determining compensable losses. Moreover, the UNCC did not address the question of whether women had equal access to filing claims in the first place. Discrimination against women in many States may have prevented their interests being represented amongst the consolidated claims lodged by Governments for consideration by the UNCC. c.

Compensation, the ICTY and the ICTR

Prior to the adoption of the Statute of the ICTY, there were various proposals to confer on the ICTY power to order compensation for victims.^11 Some delegations during the Security Council debates on the adoption of the Statute of the ICTY emphasised the need to address this issued12 The Security Council itself

407 See Category "C" Recommendations, Dec 1994, supra note 357, at 22. 408 Ibid, at 43. 409 See Category "B" Recommendations, Dec 1994, supra note 401, at 17. See also Category "C" Recommendations, ibid, at 27 and 42. 410 See Category "C" Recommendations, ibid, at 137. 411 See for example the proposals by the Organization of the Islamic Conference Proposal, Comparative Chart, in Morris & Scharf, ICTY, supra note 199, at 441; and Amnesty International Proposal, Comparative Chart, in id, at 442. 412 See the statements made by the representatives of Morocco and Djibouti, in Verbatim Record, UN Doc S/PV.3217 (25 May 1993), reprinted in Morris & Scharf, ibid, at 177.

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referred to the importance of compensation for victims, stating that the work of the ICTY should not prejudice the right of victims to claim compensation at the national level.413 However, neither the ICTY, nor the ICTR, has the power to order compensation as part of the penalties imposed on convicted persons, nor can they function as a claims commission.414 The jurisdiction of the ICTY and ICTR is limited to ordering the restitution of property and proceeds acquired by criminal conduct.4'5 The recovery of property is an important measure of redress. The misappropriation of dwellings, livestock and other valuables is a frequent and devastating aspect of armed conflict. However, the focus on property loss to the exclusion of other types of loss, including personal injury and mental anguish, represents a retreat from the advances made by the UNCC. Men are the most likely beneficiaries of provisions focusing on restitution of property. The system established by the Statutes of the ICTY and the ICTR confers the responsibility for the payment of compensation on States. States must accept judgments of the ICTY and ICTR as conclusive proof of responsibility for the crime causing injury to the victim.4^ The onus is then on States to ensure that compensation is provided to the affected individual. Such an approach assumes that domestic legal systems are equipped to provide victims of armed conflict with compensation. Most governments have no experience in this area.417 In addition, generally speaking, only sophisticated claimants of large sums will be in a position to pursue recovery through domestic channels. Many victims will be without the resources required to pursue recovery, and stateless persons are left without any recourse.418

413 See UN Doc S/RES 827 (25 May 1993) para 7. 414 See Morris & Scharf, ICTR, supra note 38, at 595. See also Morris & Scharf, ICTY, supra note 199, at 286. (citing the anticipated financial constraints under which the ICTY and ICTR would be operating as the determining factors in this respect). 415 See the discussion supra Chapter 3 notes 224 ff and accompanying text. Feminist commentators have argued that "property" should be given a broad interpretation to encompass rights and entitlements, although problems with such an approach are acknowledged. See Green et al., supra note 51, at 213. 416 See the discussion supra Chapter 3 note 225. 417 See Carver, supra note 338, at 72. 418 See the discussion supra notes 24 ff and accompanying text, of the particular problems facing women and stateless persons in accessing compensation through domestic channels.

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Compensation and the ICC

Sources of compensation The Statute of the ICC includes a provision on reparations, including compensation, for victims.^1? Two sources of compensation are provided for. First, the Court may make an order directly against a convicted person.^ 20 Secondly, compensation can be paid from the Trust Fund established for the benefit of victims of crimes within the jurisdiction of the Court, and their families.^21 The Court can order that money or property collected by "fines or forfeiture" be transferred to the Fund.* 22 The Statute does not provide for the payment of compensation pursuant to the principles of State responsibility.^2^ Nor is there currently any indication of the extent to which the international community generally may be willing to contribute to the Trust Fund. In light of this, concerns inevitably arise as to whether sufficient funds will be available to provide meaningful compensation to victims. Eligibility to claim compensation During the negotiation of the Statute of the ICC, women's groups argued that reparations, including compensation, should be made available to victims and also to "the families of victims ... dependents and otliers having a special relationship with the direct victims, whether or not formally recognized at law in the national system".^ Such a remedy is of particular importance for women, who are frequently harmed by the death or injury of spouses and other loved ones, during armed conflict. The Statute does not define the term "victim", but some guidance may be gleaned from the Report of the Working Group on Procedural Matters prepared during the ICC negotiations.^ 2 ' The Working Group considered that, in addition to victims, reparations could also be granted to other related people,

419 See Art 75(1) Statute of the ICC. Reparations are defined to include restitution, compensation and rehabilitation. 420 See Art 75 (2) Statute of the ICC. 421 See Arts 75 (2) and 79 (1) Statute of the ICC. 422 See Art 79(2) Statute of the ICC. Further criteria for managing the Fund are to be established by the Assembly of States Parties. See Art 79(3) Statute of the ICC. 423 See C Muttukumaru, "Reparation to Victims", in R Lee ed, The International Criminal Court: The Making of the Rome Statute - Issues, Negotiations, Results (1999) 262 at 267-269 (for a history of the negotiations on the issue of state responsibility). 424 Women's Caucus for Gender Justice in the International Criminal Court, Part III, Recommendations and Commentary for the March 1998 PrepCom, Reparations (18 Mar 1998). 425 See Report of the Working Group on Procedural Matters, UN Doc A/Conf.l83/C.l/WGPM/L2/ Add.7 (13 July 1998) footnote to Art 75(1), cited in Muttukumaru, supra note 423, at 269.

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such as the families and successors of the victim.426 Further consideration will be given to this issue by the Preparatory Commission of the ICC. 427 Access

Generally speaking, the Court will act upon request in determining the extent of any damage, loss or injury to a victim. However, the Court is authorised to act on its own motion in "exceptional" circumstances.428 The question of what amounts to "exceptional" circumstances is yet to be determined, but the availability of this process is particularly important for women, as they number amongst the groups who are least likely to be able to initiate claims. The Court may also invite representations from, inter alia, victims and other interested persons, that must then be taken into account when making any order for reparations.42^ e.

Compensation: An Assessment

The priority given to compensation for victims of armed conflict requires reassessment. The international community has been slow to recognise that compensation, along with other forms of reparation, assists in creating a climate in which the risk of further violations of international law is diminished. To some extent, the creation of the UNCC, and the inclusion of a reparations clause in the Statute of the ICC, reflects a changing consciousness.43° The UNCC, unconstrained by the boundaries of IHL, or international criminal law, focused on the question of what losses were actually caused by the invasion of Kuwait by Iraq. Consequently, the UNCC recognised some of the particular harms that women suffer during armed conflict. For example, in a significant advance over IHL and international criminal law, the UNCC addressed harms suffered by refugees, as well some of the economic and health implications of the conflict. Even so, from the available documentation, it is difficult to determine the extent to which women actually benefited from compensation payments, or the degree to which the gender dimensions of particular injuries were taken into

426 Ibid. A27 The Statute of the ICC requires the adoption of more detailed rules of procedure and evidence (see for example Art 51)- The Preparatory Commission, established to carry out this task, commenced deliberations in Feb 1999. The agenda of the Commission includes elements of crimes, and the rules of procedure and evidence of the Court. See . 428 See Art 75 (1) Statute of the ICC. 429 See Art 75 (3) Statute of the ICC. 430 See for example, Muttukumaru, supra note 423, at 263-264 (describing the initial resistance to, and then gradual acceptance of, a reparations clause in the Statute of the ICC).

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account in the awards granted. Moreover, in some cases, the losses suffered by women during the relevant period would have been caused, or exacerbated, by discrimination occurring within their own communities and families. The ostracism experienced by victims of sexual violence is one example of these phenomena. The mandate of the UNCC was to compensate for losses arising directly from the invasion and the causal link between the invasion and the loss was construed narrowly.431 Overall, however, the UNCC took a flexible approach, and prioritized the payment of compensation to individual civilians with pressing humanitarian needs. As one commentator points out "...the experience of the U N C C is the beginning of a more lasting sense of practical international responsibility to masses of innocent victims for the consequences of these most dreadful collective or official wrongs."432 Regrettably, such an approach to responsibility is not evident in the context of the ICTY and the ICTR, prompting suspicions that the emphasis on compensating victims of the Persian Gulf conflict (1990-91), was premised more on the political realities surrounding that conflict, than humanitarianism. The oil wealth of Iraq provided an easily identifiable and significant source of funding for the UNCC, relieving the international community of the need to commit its own resources to the problem. There was also one clear aggressor State, that had been ostracised from the community of nations, and the creation of the U N C C served the important purpose of a further sanction against Iraq. The experience of the UNCC does, however, demonstrate that an administratively based international war compensation fund, which could operate in parallel to international criminal proceedings, may be the most effective mechanism for responding to the many harms that women suffer as a result of armed conflict.433 The provisions for reparations in the Statute of the ICC, while a welcome development, will not assist victims in cases where no prosecutions are brought, where a prosecution is unsuccessful, or where a war-related loss is not recognised as a crime within the jurisdiction of the Court. Moreover, the flexibility inherent in a

431 See for example, Category "B" Recommendations, Dec 1994, supra note 401, at 17 (stating that injury or death caused by Kuwaiti nationals or authorities during the conflict could not be compensated from the fund). 432 Christenson, supra note 404, at 364. 433 Calls for such a fund have previously been made by other commentators. See for example, Green etal., supra note 51 (proposing, inter alia, the creation of a fund to operate parallel to the ICTY). See also Amnesty International, Establishing a Just Fair and Effective International Criminal Court, AI Doc IOR 40/05/94 (Oct 1994) 58-59 (proposing that an international civil court or claims court should be created to operate in parallel with the permanent international criminal).

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compensation system such as the UNCC is especially conducive to a non-intrusive process for the provision of appropriate compensation for women. Procedures could be adopted to ensure that women have equal access to the fund. These could include allowing international organisations and NGOs to assist with the claims process. Such a fund could also be used to support community programmes for women designed to assist with issues arising in the aftermath of conflict, particularly where discrimination is a factor. Funds for such an initiative could be drawn from several sources. The payment of compensation by States under the principle of State responsibility is an obvious source of such funds, as was the case with the UNCC. Fines levied or property recovered in the course of proceedings before the ICC could also be paid into the fund, as is envisaged in relation to the trust fund provided for in the Statute of the ICC. However, the international community should also take responsibility for ensuring that adequate funds for compensation are available. Given that issues of international peace and security are at stake, there is a clear rationale for financial contributions by member States of the UN. The restoration of international peace and security is an expensive exercise. The international community must be prepared to invest resources in the recovery of individuals, and thereby communities affected by armed conflict.

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CHAPTER 7 THE WAY FORWARD

This work investigated the extent to which the particular experiences of women arising from armed conflict are addressed at the international level. Our focus was international law, particularly international humanitarian law (IHL). We found a vast discrepancy between the law and the impact of armed conflict on women. We also considered other initiatives in the United Nations (UN) framework designed to respond to the problem. We conclude that, despite growing recognition of the need for action in relation to women and armed conflict, little has been achieved in real terms. We have argued that overall the discrimination that exists against women in all societies renders them particularly vulnerable to the effects of armed conflict. Furthermore, the way women are perceived in society generally, and the inferior position they occupy therein, determines the extent to which their experiences are reflected in the principles of international law that are designed to address the consequences of armed conflict. IHL fail to recognise or address this discrimination. Moreover, all other responses to the problem at the international level fail to adequately confront this phenomenon. Rather, they create new forms of discrimination against women by their reliance on hierarchies based on gender. We have identified the gendered hierarchy that permeates not only the provisions of IHL, and international criminal law applicable in armed conflict, but also the developing concern of the Security Council for victims of armed conflict. In the context of IHL, this hierarchy can be seen first in the fundamental distinction drawn in its rules between the combatant and the civilian. The former is the norm around whom the rules of IHL are constructed. Moreover, the combatant is accorded priority within the system. There are more rules protecting combatants than civilians, and their breach is taken more seriously. Most importantly, when there is a clash between the interests of combatants and civilians, an interpretation of the law that favours the interests of the former is invariably adopted. The rules of IHL reflect a particular view of the interests of States and the integral role of the combatant in protecting those interests. Secondly, even within the rules of IHL protecting the civilian population, it is the "male" civilian that is taken as the norm and its provisions are construed around their needs. Our general conclusion in relation to IHL is that it constructs and presents a partial and distorted vision of women that has little to do with the reality of their lives, or the way in which they experience warfare. The

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woman of IHL, to paraphrase Carol Smart, 1 consists of certain assumed natural characteristics, such as weakness, modesty, and chastity, all of which are derived from her sexual and reproductive roles. The detailed rules of IHL further develop and add form and content to these sexual and reproductive roles of women. In all other contexts, the protection of women is assumed to be covered by the general regime of IHL that is applicable to combatants and civilians. When viewed from the perspective of what actually happens to women in armed conflict, IHL appears of limited relevance. The protections offered by IHL are most effective when women's experience conforms to the model on which they are based. However, our study indicates that this is rarely the case. Women infrequently resemble the "norm" of IHL. When we consider the distinctive impact of armed conflict on women, either there are no applicable provisions, or those that exist only deal with a vision of woman that does not reflect reality. Moreover, any provisions that have the potential to encompass some aspects of women's experience of armed conflict, traditionally have been interpreted in such a way as to exclude women from their scope. With such profound defects, we conclude that IHL is very limited in what it can achieve for women in armed conflict. When we consider international criminal law applicable to armed conflict, once again a hierarchy of concern that has a gender component can be discerned. Historically, it has been actions most likely to affect men that have been criminalised and prosecuted. This trend has continued in the initiatives adopted by the Security Council to respond to violations of IHL. Finally, the boundaries of IHL themselves represent an additional hierarchy with specific implications for women. IHL does not address the humanitarian problems of the aftermath of conflict, when the needs of women are particularly marked. There has been increasing recognition of the particular vulnerability of women in situations of armed conflict. However, there is a persistent refusal by mainstream initiatives to acknowledge that discrimination against women is the root cause of this vulnerability.2 Recognition of the role that discrimination plays in exacerbating their situation has only occurred in the context of special mechanisms focusing on the human rights of women. This denial of the pervasive influence of discrimination is evidenced by the historical failure to consider women as a separate category of concern in their own right.3 For far too long, women were considered in the same category as children. In more recent times,

1 2 3

C Smart, "The Woman of Legal Discourse", (1992) 1 Social and Legal Studies 29. See for example, the interpretation the ICRC places on its governing principle of "impartiality", supra Chapter 4. See for example, the discussion of the work of the CSW supra Chapter 5-

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the specific problems of children associated with armed conflict have been the focus of increasing concern. A similar concern, however, has not been consistently evident in the case of women. Moreover, when attention is directed towards women and their experiences in armed conflict, it is only selective aspects of these events that are addressed. For example, nowadays, women and international criminal law in armed conflict is an established topic in international law. This unprecedented development is in the main attributable to the perseverance of dedicated individuals, particularly activists from the United States, who have been unsparing in their efforts to put sexual violence against women in armed conflict on the international criminal law map. This focus on sexual violence is compatible with the emphasis traditionally placed in that culture on the significance of rape and sexual abuse for the subordinate position of women in society.4 There are limitations with this approach. Punishment of perpetrators of sexual violence, although of considerable importance, is insufficient to achieve lasting changes of attitude and the prevention of these atrocities. The less high profile aspects of women's experience of armed conflict, such as their social and economic needs during and after conflict, have not attracted the same kind of attention, and few legal norms exist to regulate these matters. And if there is no law there can be no enforcement. The full picture of the inadequacies of international responses to the issue of women and armed conflict must include an acknowledgment of race as a factor, in addition to gender. At the end of the day, it is the Western male combatant, in international armed conflict, whose needs are the most specifically acknowledged in IHL and in other initiatives to protect individuals in armed conflict. It is the non-Western civilian woman in internal armed conflict whose needs are the least acknowledged in the system. What remains to be addressed in this work is how the shortcomings of the international responses to the experiences of women of armed conflict can be remedied. Although the focus of this work has been on the negative impact of armed conflict on women, and women as victims of armed conflict, it must be seen as only part of the overall project for the future. The demonstrated ability of women to move beyond the passive role of victim is an integral element of rethinking the issue of women and armed conflict. The discussion that follows ranges from what could be considered a Utopian view of IHL, to more easily attainable, practical initiatives for reform. At any level this is an ambitious project, the outcome of which is necessarily tentative and partial.

4

In the legal context, see the work of such writers as C MacKinnon, Feminism Unmodified (1987).

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1.

The Way Forward

The Utopian Vision: The Integration of IHL and Human Rights

It seems that the future for the regulation of armed conflict lies in the direction mapped by Gerald Draper, who writes: the law of war may take its place within the general system of international law not as an alternative to the law of peace, the old and classic positioning, but seen as an exceptional and derogating regime from that of human rights, contained, controlled and fashioned by the latter at every point possible. 5 This approach has significant potential to improve the position of victims of armed conflict. In this future vision of the role of human rights in armed conflict, the existing demarcation between international and non-international armed conflicts will disappear. The limited ability of IHL to impose obligations on all relevant parties, such as non-State actors, the State of which an individual is a national, and members of the international community generally, will become a thing of the past. Moreover, there will be a fundamental re-ordering of priorities as the influence of the military diminishes and the legitimate claims of humanity are acknowledged. To date, IHL has held a dominant position vis h vis human rights law. IHL was first in time, and was already an ancient and well developed part of international law before the advent of human rights. Most importantly, it has unchallenged priority in its own field of operation over other norms of international law when armed conflict breaks out.^ Moreover, since the Charter era, the true nature of IHL and its role in serving the interests of the military has been camouflaged by the movement to present the underlying rationale of the two regimes as identical, that is humanitarian, in nature. However, the military retains its dominant influence over the development of IHL. The significance of the

G Draper, "The Relationship between the Human Rights Regime and the Law of Armed Conflict", (1971) I IYHR 191 at 198; and see R Vinuesa, "Interface, Correspondence and Convergence of Human Rights and International Humanitarian Law", in 1998 Yearbook of International Humanitarian Law (1999) (for a discussion of the present relationship between the regimes of human rights and IHL). See C Greenwood, "Scope of Application of Humanitarian Law", in D Fleck ed, The Handbook of Humanitarian Law in Armed Conflicts (1995) 39 at 39-40 (for an explanation of the current relationship between "the law of peace" and IHL). See also the discussion of this issue by the International Court of Justice in Legality of the Threat or Use ofNuclear Weapons Advisory Opinion (1996) ICJ Reps 26; and C Greenwood, "lus ad helium and ius in hello in the Nuclear Weapons Advisory Opinion", in L de Chazournes & P Sands eds, International Law, the International Court of Justice, and Nuclear Weapons (1999) 247 at 265.

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inevitable close relationship between the ICRC, with its special responsibility for IHL, and the military, is largely unacknowledged. The development of an effective method to monitor the implementation of IHL should also be an integral aspect of any fundamental revision of the existing regime. Currently there is no comprehensive scrutiny of the extent to which norms protecting individuals from the effects of armed conflict are complied with.'7 Scrutiny of the implementation by a State of its international obligations, commonplace in human rights instruments, could become part of IHL. This may seem an unrealisable goal. However, the existing UN human rights treaty monitoring system, with all its faults, would have been unthinkable sixty years ago.8 Furthermore, the provision of redress to individuals who have suffered a broad range of war-related harms would be considerably strengthened in the new framework. Recognising that the physical, psychological, and economic rehabilitation of individuals who have been affected by armed conflict is an essential component of peace, the international community would ensure appropriate criminal prosecutions, compensation funds, and rehabilitation programmes. The particular concerns and needs of women associated with armed conflict would be fully addressed in this developing regime. The norm of the system would reflect the experience of all categories of victims: women, men, and children. The broad range of women's experiences both during and after armed conflict would be addressed as an integral part of the regime and gender perspectives would be incorporated into the monitoring mechanism that we have proposed.^

There is increasing scrutiny of IHL through the mechanisms of international criminal law. See generally supra Chapter 6. Moreover, conventional IHL contains some procedures designed to encourage the observance of IHL. See for example, Art 90 of Protocol Additional to the Geneva Conventions of 12 Aug 1949, and relating to the Protection of Victims of International Armed Conflicts, adopted in 1977 (Protocol I), (1977) 16 ILM 1391 [hereinafter Protocol I], that provides for the establishment of a Fact Finding Commission, to investigate allegations of grave breaches and serious violations of IHL. However, the Commission can only investigate when requested to do so in cases where the parties involved have recognised its competence. See also the system of protecting powers provided for in the Geneva Conventions (see Art 8 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 Aug 1949 (75 UNTS 31); Art 8 Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 Aug 1949 (75 UNTS 85); Art 8 Geneva Convention relative to the Protection of Prisoners of War of 12 Aug 1949 (75 UNTS 85); Art 9 Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 Aug 1949 (75 UNTS 287); and Art 5(5) of Protocol I. See H Steiner & P Alston, International Human Rights in Context (1996) 505. There are increasing concerns as to the operation of the UN human rights treaty monitoring system. See generally P Alston & J Crawford, eds. The Future of UN Human Rights Treaty Monitoring (2000). The ICC provides an example of the integration of gender perspectives into the operation of an international body with responsibility for the implementation of, inter alia, IHL. See the discussion supra Chapter 3 notes 155 ff and accompanying text.

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The Way Forward

The Pragmatic Vision

There are other possible legal and non-legal strategies for improving the situation of women affected by armed conflict. Clearly, some are more readily achievable than others and could take the following forms. a.

Legal Instruments

There are considerable differences of opinion as to what law has to offer in ameliorating the impact of armed conflict.10 There are also doubts as to the ability of law to achieve fundamental change for women. It may be that all that will be achieved, as Christine Chinkin puts it, is "a triumph of form over substance".11 Nevertheless, the powerful role that law plays in constructing the way we see the world and moulding reality confers on it, at the very least, a significant symbolic role to play in any improvements for the position of women in armed conflict. One vehicle to achieve change is a new conventional instrument dealing with women and armed conflict, that would take into account issues such as those identified in this study.12 Either an IHL or a human rights instrument could be the appropriate vehicle for such a development. For example, one way forward could be a protocol on women and armed conflict to the Convention on the Elimination of all Forms of Discrimination against Women.13 However, even this cautious proposal has little real chance of success. In the current international political climate, there is a fear that to open up reform of IHL may threaten the maintenance of useful existing rules.14 Having said that new conventional rules to protect women in times of armed conflict, whether in the form of an IHL or a human rights instrument, are an unlikely short-term prospect does not cut off all legal options for reform. We have described the contribution of the various organs and agencies of the United

10

11 12 13

14

For example, para 132 of the Beijing Platform for Action acknowledges that international humanitarian law is at times systematically ignored, Fourth World Conference on Women, Action for Equality Development and Peace, Beijing Declaration and Platform for Action, UN Doc A/Conf.177/20 (1995) [hereinafter Beijing Platform for Action}. See C Chinkin, "Feminist Interventions into International Law", (1997) 19 Adel L Rev 1 at 18. See ] Gardam, "Women and the Law of Armed Conflict: Why the Silence?", (1997) 46 ICLQ 55. Such a protocol could follow the precedent of the Optional protocol to the Convention on the Rights of the Child on the involvement of children in armed conflicts as adopted by consensus on 21 Jan 2000, by the UN inter-sessional open-ended Working Group. See Report of the Representative of the Secretary-General, Mr Francis M Deng, submitted pursuant to Commission on Human Rights Resolution 1995/57, Internally displaced Persons, UN Doc

E/CN.4/1996/52 (1996) 3.

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Nations and non-governmental organisations to the topic of women and armed conflict. Their work has resulted in a multitude of "soft law" instruments of widely differing nature and impact. Extrapolating from this experience, the way forward could be, for example, a Declaration adopted by the General Assembly on women in armed conflict.15 Another useful precedent in the context of civilians generally is the Guiding Principles on Internal Displacement, prepared by the Special Representative of the Secretary-General, Mr Francis Deng.16 b.

Re-interpretation of IHL

An initiative could be adopted that encourages a re-interpretation of the existing provisions of IHL to acknowledge the influence of gender perspectives and to foster changing interpretations of the rules. The Special Rapporteur on Violence against Women, in the section of her report on armed conflict, recommends that the four 1949 Geneva Conventions should be "re-examined and re-evaluated so as to incorporate developing norms against women during armed conflict. ^ Of particular relevance in this context, in light of the work of the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda, is the place of rape and other acts of sexual violence in the system of grave breaches. However, the re-evaluation of the existing norms of IHL need not be limited to sexual offences. The meaning of certain standard phrases that are used throughout the conventional instruments could be clarified. For example, the requirements imposed by the phrases "special respect", and "women shall be treated with all consideration due to their sex", could be given an interpretation more consistent with modern perceptions of women and their

15

This approach has been adopted in relation to the problem of violence against women. See for example Declaration on the Elimination oj"Violence Against Women, adopted 20 Dec 1993, GA Res 48/104. See also Preliminary Report Submitted by the Special Rapporteur on Violence against Women, its Causes and Consequences, Ms Radhika Coomaraswamy, in Accordance with Commission on Human Rights resolution 1994/45, UN Doc E/CN.4/1995/42 (22 Nov 1994) (for background to the adoption of the Declaration), paras 79-98.

16

See Report of the Representative of the Secretary-General, Mr Francis M Deng, submitted pursuant to Commission Resolution 1997139, addendum Guiding Principles on Internal displacement, UN Doc E/CN.4/1998/53/Add.2 (1998). See also the work of the group of experts on the Turku Declaration of Minimum Humanitarian Standards, Abo Akademi, Declaration of Minimum Humanitarian Standards (2nd rev ed, 1997), (designed to apply to situations of internal violence and emergency that fall outside Protocol II and Common Article 3 to the Geneva Conventions).

17

See Report of the Special Rapporteur on Violence Against Women, Its Causes and Consequences, Ms Radhika Coomaraswamy, In Accordance With Commission on Human Rights Resolution 1994145, UN Doc E/CN.4/1998/54 (1998);

258

The Way Forward

rights in armed conflict.18 The advantage of a re-interpretation of existing rules is that such a process is less threatening to the continued applicability of the rules. One method of achieving such a result could be a revision of the commentaries on the four Geneva Conventions and Protocols so as to provide a gender perspective of their provisions and to take into account the changing interpretations of the rules.1 ^ These documents are regarded as an important source for interpreting the Conventions and the Protocols. Although not official ICRC documents,20 their respective authors were all involved in varying degrees in the processes leading up to the adoption of the conventional rules. They are a useful aid in clarifying the intended scope and operation of the provisions. The commentaries on the Conventions, however, were written some forty years ago and incorporate ideas and concepts that are now outdated. For example, the commentary on Article 12 of the Second Geneva Convention to the effect that: "[w]omen shall be treated with all consideration due to their sex", reads: "[w]hat special consideration? No doubt that consideration which is accorded in every civilised country to beings who are weaker than oneself and whose honour and modesty call for respect".21 The commentaries to the Conventions and Protocols, moreover, in some cases, no longer accurately reflect the interpretations of the provisions adopted by States.22 For example, the important developments in relation to sexual violence, particularly in non-international armed conflicts, are not included in these works. c.

Improved Dissemination

Another approach to improving the situation for women in armed conflict is to encourage the better dissemination of the rules in relation to women by the State Parties to the four Geneva Conventions and Protocols. Dissemination is a treaty 18

19

20 21 22

See the discussion of these provisions, including the interpretation assigned to them in J Pictet et al. eds, Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field: Commentary (1952); id, Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea: Commentary (1960) [hereinafter Commentary Second Geneva Convention}; id, Geneva Convention Relative to the Protection of Civilian Persons in Time ofWar (1958); id, Geneva Convention relative to the Treatment of Prisoners ofWar{\96Q). See ibid; M Bothe et al., New Rules for Victims ofArmed Conflicts: Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949 (1982); and C Pilloud etal, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (1987). The ICRC, moreover, does not regard itself as bound by the interpretations placed on particular provisions by the commentaries on the Conventions and Protocols. Commentary Second Geneva. Convention, supra note 18, at 140. As, for example, the interpretation placed on the meaning of the phrases "wilfully causing great suffering or serious injury to body and health", and "torture and inhumane treatment", both of which constitute grave breaches of the Conventions.

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obligation of these States.23 The training of peacekeepers in IHL and their responsibilities to women in armed conflict is a topic that requires attention both from the United Nations itself, as well as States supplying peacekeeping forces.2^ Such undertakings in relation to dissemination, moreover, are consistent with paragraph 33 of the Beijing Platform for Action, that refers to the need to "[ejnsure respect for international law, including humanitarian law, in order to protect women and girls in particular". Processes such as increased dissemination and re-interpretation of IHL, however, have limited ability to achieve any fundamental change. As we have consistently argued, the existing rules only take a very limited view of women's lives and much more is required to address the real needs of women in armed conflict. d.

The Inclusion of Women and the Acknowledgment of Gender in Decision-Making

It seems evident that a major area that needs addressing if the position of women in armed conflict is to improve, either through legal or non-legal means, is their low participation at all levels in decision-making.25 The United Nations Development Program reports the rapid progress that has been made in improving the health and education of women worldwide, with the gender gap in education more than halved in the developing world between 1970 and 1990. However, the access of women to economic and political power remains minimal. 26 In the context of armed conflict, women should be included in decisions in relation to the location and design of refugee camps and all aspects of camp management, 27 the distribution of essential supplies and humanitarian assistance, the planning and implementation of assistance and protection measures, training policies for the military, and the fact-finding personnel of international criminal tribunals. As long as men make the decisions for women, irrespective of how well-intentioned they may be, the particular experiences of women in armed conflict will always tend to be overlooked.

23 24 25 26 27

See for example, Art 83 Protocol I. ECOSOC has acknowledged this need; see UN Doc E/RES/1996/16 (16 Apr 1996). See the discussion supra Chapter 4 note 227 and accompanying text in relation to the participation of women in the adoption of the main IHL conventional documents. See UNDP, Human Development Report (1995). See for example, Progress Report on Refugee Women and UNHCR's Framework for Implementation of the Beijing Platform for Action, UN Doc EC/47/SC/CRP.45 (15 Aug 1997) paras 19-22 (detailing the achievements of the UNHCR's programme of including refugee women in decision-making and management).

260

The Way Forward

Some progress in the inclusion of women in decision making processes is evident in initiatives in the context of reconstruction and peacebuilding after the cessation of hostilities. Paragraph 135 of the Beijing Platform for Action refers to the need to ensure: [t]he equal access and full participation of women in power structures and their full involvement in all efforts for the prevention and resolution of conflicts If women are to play an equal part in securing and maintaining peace, they must be empowered politically and economically and represented adequately at all levels of decision-making.^^ Several States and agencies have pursued these initiatives, for example, the Canadian Government, 2 ^ the UN Division for the Advancement of Women,3° and the UNHCR.31 It may be argued that it is not always feasible to include women in decisionmaking processes. Moreover, the mere presence of women will not always achieve the desired result. Simply including women in post-conflict resolution or peacebuilding initiatives can be perceived as an "add women and mix" approach that has been unsuccessful in achieving any transformation in the existing structures.^2 Similar discussions have occurred in the context of the military as to whether the increased participation of women will make a difference to that institution. The military appears to be a key factor in the reform of IHL, in particular in its application and interpretation. Is there any prospect of change in that institution itself? Arguments based on equality have allowed the increased participation of women in the military and, increasingly, they are serving in the role of combatant. Will this increased participation of women make any impact on the military: will it be that positions of influence will only be attained by those able to demonstrate their ability to mould themselves to the existing gender structure?^

28 29 30 31 32 33

See Beijing Platform for Action, supra note 10. See Canadian Centre for Foreign Policy and Development, Options, Report on the Roundtable on Gender and Peacebuilding (1997). See United Nations Division for the Advancement of Women, Gender-based Persecution, Report of the Expert Group Meeting (1997). See UNHCR, Rebuilding a Future Together II: UNHCR and Refugee Women (1997); and id, Implementing the Beijing Platform for Action (1998) 17-19. See Chinkin, supra note 11, at 23. This issue has been addressed by many feminist writers and conclusions are widely differing. See for example, J Tickner, Gender in International Relations: Feminist Perspectives on Achieving Global Security (1992) 40-41 (who writes that despite the large scale participation of women in non-combat roles in many States: "the relationship between soldiering, masculinity, and citizenship remains very strong in most societies today").

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Some feminists who accept the idea of the inherent "difference" between men and women may see the comprehensive participation of women in the military (and in public life generally) as having the potential to alter its culture. They emphasise the caring or nurturing qualities of women.^ Other feminists regard this approach as fraught with danger, as it fails to acknowledge these qualities as part of the gendered construct of femininity.35 It may be that the experience of the increasing numbers of women in the military will merely demonstrate that, although decision making institutions and structures, including the military, both need and use women, they can still remain impervious to fundamental change. Nevertheless, the inclusion of women is a matter of simple justice. It is their lives that are being dealt with and they should have a say in any decisions that are made. Moreover, it is finally becoming accepted that for initiatives and undertakings that require the expertise, labour, and cooperation of women to be effective, women must be consulted. The requirement that a gender perspective be an integral part of all initiatives in the context of armed conflict may achieve real change for women. There is, however, a lack of widespread confidence that, to date, this strategy has achieved progress for women in other areas.36

34 35

36

Much of the writing by feminists in this area is based on the landmark work of Carol Gilligan, In a Different Voice, Psychological Theory and Women's Development (1982). Amongst legal feminists the most trenchant criticism of this view of the nature of women has come from Catharine Mackinnon, see for example, E Dubois etal. [including C Mackinnon], "Feminist Discourse, Moral Values, and the Law — A Conversation" (1984) 34 Buffalo LR. 11, see also J Williams, "Deconstructing Gender", in K Bartlett & R Kennedy, Feminist Legal Theory: Readings in Law and Gender (1991) 95. This policy of mainstreaming a gender perspective into all policies and programmes affecting women is already well under way in the field of human rights. See A Gallagher, "Ending the Marginalization: Strategies for Incorporating Women into the United Nations Human Rights System", (1997) 19 HRQ 283 at 288; J Connors, "Mainstreaming Gender Within the International Framework", paper delivered to the Law and the Social Inclusion of Women conference, University of Warwick, Feb 1996; and C Brautigam, "Mainstreaming a Gender Perspective in the Work of the United Nations Human Rights Treaty Bodies", (1997) Proc ASIL 389. See also the Beijing Platform for Action, supra note 10, paras 222, 231 and in the context of Strategic Objective E, Women and Armed Conflict, para 143 of the Beijing Platform for Action: "[i]n addressing armed or other conflicts, an active and visible policy of mainstreaming a gender perspective into all policies and programs should be promoted so that before decisions are taken an analysis is made of the effects on women and men, respectively."

262

e.

The Way Forward

A Centre of Expertise on Gender Issues and Armed Conflict

Although we have identified in some detail a range of experiences of women in conflict situations, much more remains to be done to provide a fully comprehensive picture. This should be an on-going process. A forum to promote the better protection of women affected by armed conflict is a priority. Increasingly, the issue of women and armed conflict is on the agenda of a variety of bodies in the international arena. The Platform for Action calls on: "[governments, the international community and civil society, including non-governmental organisations and the private sector", "to take strategic action", inter alia, in relation to the "[t]he effects of armed or other kinds of conflict on women, including those living under foreign occupation".37 A number of strategic objectives were adopted by the Conference towards the achievement of this goal. However, effective action requires coordination. A specialist unit focusing on all aspects of women and armed conflict should be established within the UN system. This centre is best placed within the Office of the UN High Commissioner for Human Rights to reflect the increasing recognition that humanitarian considerations should prevail in future approaches to armed conflict. The mandate of this body should include such matters as on-going data collection, advice to and training of relevant agencies, organisations and individuals in gender aspects of armed conflict, and dissemination of information regarding women and armed conflict, including the applicable law.

f.

ICRC

Any discussion of the reform of IHL to take account of the needs of women must recognise the important role of the ICRC in this process. The ICRC, which has special responsibility for the development of IHL, has not been pro-active in relation to women. Traditionally, whilst recognising the vulnerability of women in armed conflict, the ICRC has tended to take the view that the rules of IHL are adequate, they merely require re-interpretation or better enforcement. A more reflective approach is now discernible and there is increasing acknowledgment by the organisation that there may be gaps in the protections offered to women by IHL. Moreover, there is a recognition that the topic of women and their particular experiences has been insufficiently examined. Most importantly, it is apparent that the ICRC is nowadays aware of the need to consider women other than under the general rubric of civilians in all their activities. The adequacy of that response, however, will require monitoring.

37

See the discussion supra Chapter 5, notes 172 ff and accompanying text.

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There is a tendency, that the organisation should address, to maintain outdated and stereotyped visions of women in their work, for example: "the law recognises that women have specific needs arising from their biological roles as mothers and from the particular consideration which is due to their sex".^8 Although the latter phrase comes directly from the rules of IHL, it could be interpreted in a way that is more consistent with modern day views of women.

A FINAL WORD Overall, the approach of the international community to women and armed conflict is ambivalent. There is increasing recognition that something needs to be done. However, there is a refusal to acknowledge, and thus to address, the underlying factor of discrimination that accounts for so many of the difficulties women experience during times of armed conflict. Recently, one of the most respected and able commentators on IHL has frankly acknowledged what he perceives as the shortcomings of his earlier treatment of the topic.39 Specifically, he expresses regret that insufficient attention was paid to civil conflicts. This omission is remedied admirably in his latest work. Women, however, remained invisible in this re-appraisal, except a passing reference to them as performing the role of "essential breeding stock".^° This "blindness" in relation to women is a feature of all the traditional works on There is still a long way to go.

38 39 40

41

See ICRC, Women and War (1995) 6. See G Best, War and Law Since 1945 (1994) 17-18. Ibid, at 14 reads: "[protection or seizure of territory and/or property is the most likely purpose, [for the outbreak of war] but it is not difficult to suppose that the causes may also have included affronted pride and honour, shortage of women and other essential breeding stock ...". Cf, however, H McCoubrey, International Humanitarian Law (2nd ed) 190, acknowledging that "the provision made for women in the humanitarian laws of armed conflict can, in some respects, be argued to be both inadequate and outdated".

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INDEX

civilian objectives/targets 22, 69-70, 76, 125, 129, 206 civilian women 19, 20, 21-23, 106, 119, 116, 138, 162, 180,251-252 civilians see protection of non-combatants, see also civilian women collateral casualties and women 23-25, 101 combatants see male combatants, women combatants, see also protection of combatants comfort women 45,46-47, 144-145, 147, 161, 192, 207-208, 231-232 Commission on the Status of Women (CSW) 13, 136-143, 165-166, 171, 172, 174, 175-176 Committee on the Elimination of all Forms of Discrimination against Women 146 Commission of Experts for Yugoslavia see Yugoslav Commission Commission of Experts for Rwanda see Rwanda Commission compensation 56, 87-92, 178-179, 230, see also compensation for women and UN Compensation Commission compensation for women 178-179, 230249 concentration camps 34, 35, 192 Conference for Protection of War Victims, 1993 132 Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflict, 1972 139, 141-142 Conference on Human Rights, Teheran 1968 114,136,137 Control Council Law No 10, 20 Dec 1945 79-80, 197 Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) 9, 13, 99, 124, 146, 256 Convention on the Elimination of all Forms of Discrimination against Women

abortion 24, 25, 44 access to emergency relief for women 24, 47-48 Aceh 27 Afghanistan 22, 24, 27, 44, 45 African Rights 153,15 Agent Orange 25, 41 Akayesu case 193-197, 203, 214, 218, 226-227 Algeria 22,27 alien women 67, 68 Amnesty International 21, 35, 42 Angola 27 Apartheid see South Africa, Truth and Reconciliation Commission Argentina 35 Asian Women's Fund 232 Azerbaijan 27 Bangladesh (East Pakistan) 27, 141 Beijing Platform for Action 7, 14, 21, 133, 136, 162-164, 165, 169-170, 172, 174, 259, 260, 262, see also Fourth World Conference on Women Bosnia (and Herzegovina) 28, 48,146, 149, 151, 160, 168, 188-196, 221, 225 boundaries of IHL 58-60, 106, 125, 126, 128, 252 Bougainville 28 Brussels Declaration 1874 57-58 Burma see Myanmar Cambodia 24,39,42,44 Canon law 111 Celebici judgment 188-189 Chad 28,42 Charter of the International Military Tribunal for the Far East see Tokyo Charter Chechnya 28 chemical weapons and women 24, 41, see also Agent Orange chivalry, influence on IHL 21,48,95, 108, 111-112 Christianity 108, 110-111 civil war see non-international armed conflict

285

286

(CEDAW), Optional Protocol 13 Convention on the Rights of the Child (CROC) 5, 174 crimes against humanity 3, 13, 55, 78-81, 82, 182, 187, 188, 197-201, 207 Croatia 23,28, 149, 151 Cyprus 28, 39 death penalty and women 67-68, 185 Declaration of the International Conference for the Protection of War Victims 15 Declaration on the Elimination of Violence against Women, 1993 147 Declaration on the Protection of Women and Children in Emergency and Armed Conflict, UN General Assembly 1974 138, 172 deliberate killing of women 21-23, 101 detention camps (Yugoslavia) 150, 159, 188-189,211 discrimination against women 3, 9, 20-21, 36, 97, 134, 163, 178, 180-181, 223, 229,251,252-253,263 displaced women see internally displaced women and see also women refugees dissemination of IHL 128, 131, 258-259 domestic violence 32, 102, 185 Draft Basic Principles and Guidelines on the Right to Reparation for Victims of Gross Violations of Human Rights and International Humanitarian Law 88 East Timor 28, 167 economic effects of armed conflict on women 40-42, 104, 164, 229 economic losses, compensation for 241-242 economic sanctions, effect on women 43, 126-127 Eichmann case 190, 194 El Salvador 49 equal application of IHL 61-62, 97. Eritrea 49 essential supplies and services, access of women to 42-48 ethnicity 82, 150, 182, 196, 199 family ties see maintenance and restoration of family ties female genital mutilation 102, 185, 195 field of application of IHL see boundaries of IHL food/food supply 43, 47-48, 66, 103, 104,

Index

124, 127, 142, 167,236 forced labour 35, 192 forced pregnancy 25, 75-77, 149, 162, 188, 195, 203 forced sterilisation 75-77, 195, 199, 203 Former Yugoslavia 12, 15, 31, 36, 37, 42, 136, 146, 148-151, 154-160, 165, 172, 186, 187, 192-197, 208, 211, 228 Fourth World Conference on Women, Beijing 1995 14, 136, 158, 162-164, see also Beijing Platform for Action Furundzija decision 201, 202, 224-226 gender, definition of 10 gender, effect of 10, 182-187, 221-227 gender, gendered nature of IHL 10-11, 94101, 105, 107, 116-118,251-252 gender stereotypes 35-37, 42, 104, 107, 117, 152, 223, 263 general provisions of IHL 3, 9, 17, 60, 6871, 97-99, 252 Geneva Convention I on Wounded and Sick in Armed Forces in the Field, 1949 54-78, 83, 96, 97, 100, 101, 103, 130, 182,201-203,213,258-259 Geneva Convention II on Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 1949 54-78, 83, 96, 101, 103, 130, 182, 201-203, 213, 258-259 Geneva Convention III on Prisoners of War, 1949 54-78, 83, 96,98, 99, 100, 101, 103, 106, 130, 182, 201-203, 258-259 Geneva Convention IV on the Protection of Civilians, 1949 54-78, 83, 89, 96, 97, 99, 100, 101, 103, 104, 105, 125, 127, 130, 182, 184, 187, 201-203, 213, 258259 Geneva Convention on Prisoners of War, 1929 54,55,62 Geneva Convention on Wounded and Sick, 1929 54,55 genocide 3, 21, 81-82, 152, 154, 182, 187, 190-197 Genocide Convention, 1948 81-82, 182, 190-197 Georgia 28 grave breaches and IHL 15, 73-75, 89, 100, 132, 148, 182, 183, 184, 185, 186, 201-203, 211, 257, see also war crimes Guatemala 28, 49

Index

guerilla warfare 49 Hague Convention II with Respect to the Laws and Customs of War on Land, 29 July 1899 55,57-58 Hague Convention IV with Respect to the Laws and Customs of War on Land, 18 Oct 1907 55, 57-58, 89 Hague International Peace Conference, 1899 Haiti 28 health effects of armed conflict on women 43-47, 242-243 hierarchy of rules of IHL 99-101 HIV/AIDS 45,240 Holocaust 21,34, 190,230 honour of combatants/men/warriors 11, 98, 109, 167 honour of women 11, 62, 63, 64, 95, 97, 108-110, 172, 187,201, 227 human rights 14, 87, 113, 118, 136, 146, 164, 172, 173, 254-255 human rights law 14, 88, 113-114, 122-124, 162, 176, 254, 256 Human Rights Watch 16, 153, 156, 158, 160,213 India 28, 141, see also Kashmir, Punjab indiscriminate attacks 69-70, 71, 72, 75, 76, 120, 229, see also collateral casualties and women Indonesia 28, see also Aceh, East Timor, Irian Jaya, West Papua Instructions for the Government of Armies of the United States in the Field, 24 April 1863 see Lieber Code

International Committee of the Red Cross (ICRC) 2,10,15,107,113,131-134, 138-139, 174-175, 201, 238, 255-258, 262-263 International Court of Justice (ICJ) 145 International Covenant on Economic, Social and Cultural Rights 142 International Criminal Court 13, 55, 60, 75-76, 77, 78, 80, 82, 83-87, 91-92, 165, 169, 179, 196, 199, 200, 203, 204, 219-221, 223, 226, 246-247 International Criminal Court Trust Fund 91 international criminal law 4, 179, 181, 222, 252-253

287

International Criminal Tribunal for Rwanda (ICTR) 12-13, 77, 78, 83-87, 90, 154, 156, 167, 169, 183-184, 192-197, 199, 200, 202-203, 204, 208-210, 213-219, 220, 222-228, 244-245, 248, 257 International Criminal Tribunal for the Former Yugoslavia (ICTY) 12-13, 77, 78, 80, 83-87, 90, 150, 154, 156, 169, 183, 288-189, 192-197, 197-201, 201203, 204, 208-213, 217-219, 220, 222228, 244-245, 248, 257 international humanitarian law (IHL) see boundaries of IHL; chivalry, influence on IHL; dissemination of IHL; equal application of IHL; general provisions of IHL; grave breaches of IHL; hierarchy of rules of IHL; interpretation and development of IHL; military influence on IHL; norm of IHL; reinterpretation of IHL; special provisions of IHL for women International Military Tribunal at Nuremberg see Nuremberg War Crimes Tribunal International Military Tribunal for the Far East see Tokyo War Crimes Tribunal Iraq Persian Gulf Conflict (1990-91) Irian Jaya 28 Israel, Israeli Defence Force 49, 139 Japan 39, 136, 161, 207, 231-232, see also comfort women, Nanking jus cogens 184 just war 110 Kashmir 29 Kenya 29,32 knights see chivalry, influence on IHL Kosovo 29, 120-121, 159-160, 211, 221-228 Kuwait see Persian Gulf Conflict 1990-91 landmines 4, 23, 24, 114, 128 landmines and women 24, 44, 50, 101, see also Ottawa Convention laser weapons 114 law of armed conflict, see international humanitarian law Lieber Code, Instructions for the Government of Armies of the United States in the Field, 24 April 1863 57,114-115 family members, loss of 37-38, 45-46

288

maintenance and restoration of family ties 168 male combatants 11, 20, 98-99 maternity see pregnant women medical care/treatment of women 42-47, 65-66, 104, 124, 142, 167, 181, 225, 236 medical experimentation 25, 77 military, influence on IHL 3, 4, 5, 6, 112-121, 245-255, 260 military necessity 114-119, 121 military objectives/targets 22,69,98, 101 Mozambique 29 Musema judgment 195-196, 203, 215-216 Muslim women 156,159,199-200 Myanmar (Burma) 29 Nairobi World Conference to Review and Appraise the Achievements of the UN Decade for Women, 1985 146 Namibia 29, 143 Nanking 207 NATO 120-121, 159-160 Nazi-Germany 21, 33-34, 205 see also Holocaust neutralised zones 142 non-combatant women see civilian women, see also protection of non-combatants Non-Governmental Organisations (see also African Rights, Amnesty International, Human Rights Watch) 138, 142, 147, 151, 152, 153, 156, 157-158, 166, 171, 181, 214, 218, 220, 232, 249, 257 non-international armed conflicts 62, 64, 67, 71, 76-78, 122-123, 230, 254, 263 normoflHL 11,17,93-99,105, 251-252, 255 Nuremberg Charter 78-79, 197-198,205, 230 Nuremberg War Crimes Tribunal 78, 198, 204-208, 227 Occupied territories...see women in occupied territories Ottawa Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and their Destruction, 1997 4 Oxford Manual 1880 57-58 Pakistan 33, 140 Palestinian Territories 29, 49, 143

Index

Papua New Guinea see Bougainville paramilitary forces...5, see also guerilla warfare Peace of God 111 penal sanctions and women 67-8 persecution 79, 211 Persian Gulf Conflict (1990-91) 17, 40, 50, 119, 120, 121, 127, 129, 144, 233-244 Peru 22, 29, 49, 147 Philippines 29, 49 political participation of women 8, 22, 259-261 pornography 26 poverty 8,41,45, 181 pregnant women 21, 44, 62,63, 65-68, 94, 95-96, 104, 107, 143, 241 prisoners of war 54, 61, 98, 103, 106, 107, 115, 117, 125, see also women prisoners of war proportionality 120, 125-126, 129 prosecution of offenders/perpetrators 153, 177-179 prostitution/forced prostitution 26, 32, 58, 64-65, 75-77, 124, 162, 199, 200, 203 protection of combatants 5,251 protection of non-combatants 4, 5, 53-54, 55, 68-71, 74-75, 38, 110, 115-116, 119-120, 121, 128-129, 142, 251, see also civilian women protection of witnesses 84, 86, 221-223 Protocol Additional to the Geneva Conventions of 12 Aug 1949, and relating to the Protection of Victims of International Armed Conflict, 1977 [Protocol I] 4, 54-78, 83, 89, 96, 99100, 101, 102, 105, 125, 127, 129, 130, 139, 182-183, 187,259 Protocol Additional to the Geneva Conventions of 12 Aug 1949, and relating to the Protection of Victims of Non-International Armed Conflict, 1977 [Protocol II] 4, 13, 54-78, 83, 105, 127, 130, 139, 182, 187, 203, 213, 259 Punjab 27 race 82, 97, 155, 182, 196, 199, 253 rape 12, 13, 15-16, 25, 32, 34, 42, 45, 46, 48, 58, 64-65, 75, 77, 79, 84, 100, 112, 140-141, 144, 148-160, 162, 169, 172, 180, 181, 186-187, 188, 192, 194, 195

289

Index

198-199, 201, 202, 203, 205, 206, 207, 211, 214, 221, 228, 239, 240, 252, 257 redress for women 177-181, 255, see also compensation for women refugees 31, see also women refugees refugee camps 27, 32, 43, 103, 236, 259 refugee law 122-123 religion 48, 102, see also Christianity reparation see compensation, compensation for women repatriation 33, 66 Rwanda 16-17, 29, 31, 36, 42, 45, 47, 136, 151-160, 165, 167, 168, 172, 192-197, 203, 208, 210, 213-216, 221 Rwanda Commission 152-154 Security Council, see UN Security Council sexual violence against women 12-13, 1516, 19, 25-30, 32, 39, 44, 45, AG, 49, 53, 63, 64-65, 74, 75, 77, 94, 97, 102, 107, 112, 125, 132, 134, 136-137, 140141, 144, 145, 146-147, 148-160, 162, 136, 165, 169, 173-173, 180, 181, 185, 186, 187, 188-204, 210, 211, 213, 214216, 217, 219, 221-228, 229, 238-241, 252, 257 Sierra Leone 29 slavery/sexual slavery 75, 77, 81, 151, 160-162 small arms and women 23, 101, 128 social position of women, loss of 38-39 Somalia 29, 36, 39, 147 South Africa 23, 29, 34, 38, 49, 141, 221 special provisions for women 9, 17, 54-55, 62-68, 74, 93-97, 98, 100, 104, 185 Special Rapporteur for Rwanda 153 Special Rapporteur on the Question of Systematic Rape and Sexual Slavery and Slavery-like Practices During Wartime 145, 160-161, 166, 219-220 Special Rapporteur on the Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms 88 Special Rapporteur on the Situation of Human Rights in the Territory of the Former Yugoslavia 151

Special Rapporteur on Violence against Women 16, 45, 147, 156, 162, 166167, 218, 222, 257 Srebrenica 33,37,38 Sri Lanka 49 stateless persons 181,237 Sudan 29, 42 Tadic case 183, 200, 202, 224 Tibet 29 Tokyo Charter 198,230 Tokyo judgment

198

Tokyo War Crimes Tribunal 80,198, 204-208, 216, 218, 227 torture 77, 79, 100, 102, 125, 142, 187, 188-190, 194, 197, 198,207,211 trafficking in women 26 Treaty of Versailles 1919 58 Truth and Reconciliation Commission, South Africa 38 Uganda 29 UN Charter 58, 59, 90, 113, 127, 174, 208, 254 UN Commission on Human Rights 145, 150-151, 153, 162, 174 UN Committee on Economic, Social and Cultural Rights UN Compensation Commission (UNCC) 56, 144, 179, 191, 233-244, 247-249 UN Development Fund for Women (UNIFEM) 167 UN Division for Advancement of Women 260 UN High Commissioner for Human Rights (UNHCHR) 161,262 UN High Commissioner for Refugees (UNHCR) 32, 168, 171, 237, 260 UN Peacekeeping Forces 30, 169, 173 UN Relief and Works Agency for Palestine Refugees in the Near East 237 UN Secretary-General 138-142,161, 168-169 UN Security Council 2,126-128,143, 148, 150, 151, 152, 154, 155, 168-169, 171, 208-210, 233, 244-245, 251 UN Voluntary Fund for Victims of Torture 92 UN War Crimes Commission 205 UN World Conference on Human Rights, Vienna 1993 147

290

UNICEF 48 Universal Declaration of Human Rights 142 Unnecessary suffering/superfluous injury 71,98, 115, 117 Vienna Declaration and Programme of Action 147 Vietnam 27 Vietnam War 24, see also Agent Orange vulnerability of women 20,45, 112, 134, 140, 141, 147, 252, 262 war crimes 15, 72-78, 79, 182-183, 228, see also grave breaches of IHL weapons of mass destruction 116 weapons regulations/control 71-72, 107 West Papua 29 widowhood 37,104, 124, 166, 180, 237-238 women see abortion; chemical weapons and women; civilian women; collateral casualties and women; comfort women; death penalty and women; deliberate killing of women; discrimination against women; displaced women; domestic violence; economic effects of armed conflict on women; economic sanctions, effects on women; emergency relief for women; essential supplies and services, access of women to; family members, loss of; forced pregnancy; forced sterilisation; health effects of armed conflict on women; honour of women; landmines and women; maintenance and restoration of family ties; medical care/treatment of women; Muslim women; penal sanctions and women; political participation of women; pornography; pregnant women; prostitution; rape; sexual violence against women; slavery; small arms and women; social position of women; special provisions of IHL for women; vulnerability of women; widowhood women combatants 48-51, 54, 105-106, 260 women in detention...33-35, 104, 185 women prisoners of war 62-64, 185, see also detention camps, prisoners of war women in occupied territories...67, 76

Index

women refugees 24, 30-33, 103, 140, 143, 162, 165, 166, 168, 180, 185, 235-237 World War II (1939-45) 27, 35, 36, 39, 136, 144, 205, 230-232 Yugoslav Commission 148-151, 156-157, 178, 201